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Full text of "North Carolina Register v.2 no. 7 (10/15/1987)"

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RECEIVED 



OCT 20 1987 

EAV» LIBRAE i>b^ 

NORTH CAROLINA 

REGISTER 



IN THIS ISSUE. 



TITTl 

|,T!t 



^V/STRNl^ 



EXECUTIVE ORDERS 

JUDICIAL ORDERS 

PROPOSED RULES 
Administration 
Agriculture 
Commerce 
Dental Examiners 
Human Resources 
NRCD 
State Personnel 

FINAL RULES 
Revenue 
Transportation 
Treasurer 

LIST OF RULES AFFECTED 



ISSUE DATE: OCTOBER 15, 1987 
Volume 2 • Issue 7 • Pages 418-487 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CO 



NORTH CAROLINA REGISTER 

The North Carolina Register is published monthly and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and amend- 
ments filed under Chapter 150B must be published in the Register. 
The Register will typically comprise approximately one hundred 
pages per issue of legal text. 

State law requires that a copy of each issue be provided free 
of charge to each county in the state and to various state officials 
and institutions. The North Carolina Register is available by 
yearly subscription at a cost of ninety-five dollars ($95.00) for 
12 issues. 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, P. O. 
Drawer 11666, Raleigh, N. C. 27604, Attn: Subscriptions. 



ADOPTION, AMENDMENT, AND REPEAL OF RULES 

An agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include a reference to the Statutory 
Authority for the action; the time and place of the public hearing 
and a statement of how public comments may be submitted to 
the agency either at the hearing or otherwise; the text of the 
proposed rule or amendment; and the proposed effective date. 

The Director of the Office of Administrative Hearings has 
authority to publish a summary, rather than the full text, of any 
amendment which is considered to be too lengthy. In such case, 
the full text of the rule containing the proposed amendment will 
be available for public inspection at the Rules Division of the 
Office of Administrative Hearings and at the office of the 
promulgating agency. 

Following publication of the proposal in the North Carolina 
Register, at least 60 days must elapse before the agency may take 
action on the proposed adoption, amendment or repeal. 

When final action is taken, the promulgating agency must file 
any adopted or amended rule with the Office of Administrative 
Hearings. If it differs substantially from the proposed form 
published as part of the public notice, the adopted version will 
again be published in the North Carolina Register. 

A rule, or amended rule, cannot become effective earlier than 
the first day of the second calendar month after the adoption is 
filed. 

Proposed action on rules may be withdrawn by the pro- 
mulgating agency at any time before final action is taken by the 
agency. 



TEMPORARY RULES 

Under certain conditions of an emergency nature, some 
agencies may issue temporary rules. A temporary rule becomes 
effective when adopted and remains in effect for the period 
specified in the rule or 120 days, whichever is less. An agency 
adopting a temporary rule must begin normal rule-making 
procedures on the permanent rule at the same time the temporary 
rule is adopted. 



NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) 
compilation and index of the administrative rules of 25 
agencies and 38 occupational licensing boards. The N( 
comprises approximately 15,000 letter size, single spaced p, 
of material of which approximately 35% is changed annu; 
Compilation and publication of the NCAC is mandated by ( 
150B-63(b). 

The Code is divided into Titles and Chapters. Each state ag 
is assigned a separate title which is further broken dowi 
chapters. Title 2 1 is designated for occupational licensing bo; 

The NCAC is available in two formats. 

( 1 ) In looseleaf pages at a minimum cost of two dollars 
50 cents ($2.50) for 10 pages or less, plus fifteen ( 
($0.15) per each additional page. 

(2) On microfiche. The microfiche edition is revised s 
annually (March and October) and can be purchase 
forty dollars ($40.00) per edition. Due to the vo 
of the Code, the complete copy can only be purchase 
microfiche. The NCAC on microfiche is upc 
monthly by publication of a "List of Rules Affec 
which sets out rules filed the previous month, the a 
taken, and the effective date of the change. This I 
published in the North Carolina Register. 

Requests for looseleaf pages of rules or the NCA( 
microfiche should be directed to the Office of Administi 
Hearings. 



NOTE 

The foregoing is a generalized statement of the procedu 
be followed. For specific statutory language, it is suggeste< 
Articles 2 and 5 of Chapter 150B of the General Statul 
examined carefully. 



CITATION TO THE NORTH CAROLINA REGIS! 

The North Carolina Register is cited by volume, issue 
number and date. 1:1 NCR 101-201, April 1, 1986 ref 

Volume 1, Issue 1, pages 101 through 201 of the North Ca, 
Register issued on April 1, 1986. 



North Carolina Register. Published monthly by t 
Office of Administrative Hearings, P. O. Drawer 1 166 
Raleigh, North Carolina 27604, pursuant to Chapter 15( 
of the General Statutes. Subscriptions ninety-five doll 
($95.00) per year. 

North Carolina Administrative Code. Published 
March and October by the Office of Administrati 
Hearings, P. O. Drawer 1 1666, Raleigh, North Carol 
27604, pursuant to Chapter 150B of the General Statuti 
Subscriptions forty dollars ($40.00) per edition. 



g 
to 

na 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 11666 

Raleigh, NC 27604 

(919) 733 - 2678 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 55-56 418 

II. JUDICIAL ORDERS 

Martin v. Melott 420 

III. PROPOSED RULES 
Administration 

Departmental Rules 429 

Agriculture 
Food and Drug 

Protection Division 429 

Commerce 

Cemetery Commission 429 

Seafood Industrial 

Park Authority 430 

Human Resources 

Commission of Anatomy 441 

Health Services 432 

Mental Health, Mental 

Retardation and 

Substance Abuse 442 

Medical Assistance 443 

Licensing Boards 

Dental Examiners 461 

NRCD 

Coastal Management 445 

Wildlife Resources and 

Water Safety 446 

State Personnel 

Office of State Personnel 465 



Robert A. Melott, 

Director 
James R. Scarcella, Sr. 

Deputy Director 
Molly Mason, 

Assistant Director 

Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Johnson, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



W. FINAL RULES 
Revenue 

Corporate Income 

Franchise Tax 470 

Transportation 

Division of Highways 471 

Treasurer 
Educational Faculties 

Finance Agency 475 

V. LIST OF RULES AFFECTED 

October 1, 1987 479 

VI. CUMULATIVE CSDEX 485 



NORTH CAROLINA REGISTER 

Publication Deadlines and Schedules 

(September 1987 - March 1988) 



Issue 


Last Day 


Last Day 


Earliest 


* 


Date 


for 


for 


Date for 


Earliest 




Filing 


Electronic 


Public 


Effective 






Filing 


Hearing & 
Adoption by 
Agency 


Date 


******** 


******** 


******** 


******** 


******** 


09/15 87 


08/26/87 


09/02/87 


10/15/87 


01/01/88 


10/15/87 


09-25/87 


10/02/87 


11/14/87 


02 01 88 


11,16/87 


10 27/87 


11/03/87 


12 16/87 


03/01/88 


12 15 87 


11 23/87 


12/02/87 


01 14/88 


04 01/88 


01/15/88 


12 28 87 


01/04/88 


02 14 8S 


05 01,88 


n2 15 88 


01/26/88 


02/02/88 


03/16/88 


06,01/88 


03/15/88 


02/24/88 


03/02/88 


04/14/88 


07/01/88 



* The "Earliest Effective Date" is computed assuming that the public hearing 
and adoption occur in the calendar month immediately following the "Issue 
Date", that the agency files the rule with The Administrative Rules Review- 
Commission by the 20th of the same calendar month and that ARRC approves 
the rule at the next calendar month meeting. 



EXECUTIVE 
ORDERS 

EXECUTIVE ORDER NUMBER 55 



MARTIN LUTHER KING, JR. HOLIDAY 
COMMISSION 



The third Monday of January of each year has 
been set aside by both the State and Federal 
governments as a legal holiday to honor the 
birthday of Martin Luther King, Jr.; 

Such holiday should serve as a time for all 
North Carolinians to reflect on the principles of 
racial equality and non-violent social change es- 
poused by Martin Luther King, Jr.; 

It is appropriate that the State work to plan, 
promote and assist statewide and local cele- 
brations and observances of this important na- 
tional holiday. 

Therefore, by the authority vested in me as 
Governor by the Constitution and laws of North 
Carolina, IT IS ORDERED; 

(a) The Martin Luther King, Jr. Holiday 
Commission is hereby established under the 
Department of Administration. The Com- 
mission shall be composed of not less than 
ten (10) members appointed by the Gover- 
nor to serve at the pleasure of the Governor. 
Vacancies shall be filled by the Governor. 
The Governor shall designate one of the 
members as chairman and at least one 
member as vice-chairman. 

(b) The Commission shall meet at the call of 
the Chairman. 

(c) The Commission shall have the following 
duties: 

(1) Encourage appropriate ceremonies and 
activities throughout the State relating to 
the observance of the legal holiday hon- 
oring Martin Luther King, Jr.'s birthday; 

(2) Provide advice and assistance to local 
governments and private organizations 
across the State with respect to the 
observance of such holiday; 

(3) Work to promote among the citizens of 
North Carolina an awareness and appre- 
ciation of the life and work of Martin 
Luther King. 

(d) Administrative support for this Commis- 
sion shall be provided by the Department 
of Administration. 

(e) Members of the Commission may be re- 
imbursed for necessary travel and 
subsistence expenses as authorized by 
N.C.G.S. 138-5. Members who are State 



(0 



officials or employees shall be reimbursed 
as authorized by N.C.G.S. 138-6. Funds 
for reimbursement of such expenses shall be 
made available from funds authorized by the 
Department of Administration. 
This order shall be effective immediately. 



Done in Raleigh, North Carolina this 30th day 
of September, 1987. 



EXECUTIVE ORDER NUMBER 56 

GOVERNOR'S ADVISORY BOARD ON 
ATHLETES AGAINST CRIME 

The safety and proper development of our 
State's young people is at greater risk now than 
ever before in history. The growth of the crime 
rate in increasingly younger populations is a 
trend that is of major concern nationally as well 
as here in North Carolina. 

The State of North Carolina must consider ap- 
propriate measures designed to reverse the crime 
rate among its youth. With the attention and 
energy that athletics generates and the appeal that 
athletics has among our youth, the establishment 
of an advisory board can be a viable crime pre- 
vention tool. 

Therefore, by the authority vested in me as 
Governor by the Constitution and laws of North 
Carolina, IT IS ORDERED: 



SECTION 1. ESTABLISHMENT 

There is hereby established the Governor's Ad- 
visory Board on Athletes Against Crime, herein- 
after referred to as the "Board." The Board shall 
be comprised of a chairman and at least fifteen 
members appointed by the Governor to serve at 
the pleasure of the Governor. The members 
appointed by the Governor shall include but not 
be limited to representatives of the following 
areas: 

The Department of Crime Control and Public 
Safety; 

The North Carolina Fellowship of Christian 
Athletes; 

Athletic directors, coaches, and student 
athletes at junior high, high school, and 
collegiate levels; 

The North Carolina High School Athletic As- 
sociation and other amateur sports organiza- 
tions; 

Professional athletes; 
Law enforcement; 



NORTH CAROLINA REGISTER 



418 



Private citizens or volunteers who have an in- 
terest in athletics and/or youth-oriented crime 
prevention programs in the State. 

SECTION 2. MEETINGS 

The Board shall meet regularly at the call of the 
Chairman and shall hold special meetings at the 
call of the Chairman, the Governor, or the Sec- 
retary of Crime Control and Public Safety. 

SECTION 3. DUTIES 

The Board shall have the following duties: 

(A) Provide a forum for discussing issues con- 
cerning youth involvement in crime and ef- 
fective approaches to preventing crime 
among young people; 

(B) Coordinate athletic directors, coaches, and 
student athletes at the junior high, high 
school, and collegiate levels to implement 
the crime prevention objectives of the 
Athletes Against Crime program; 

(C) Review existing and proposed youth- 
oriented crime prevention programs at the 
local, state, and national levels which in- 
volve athletes; 

(D) Advise the Governor and Secretary of 
Crime Control and Public Safety on meas- 
ures and activities to support youth crime 
prevention programs and promote the 
Athletes Against Crime program; 

(E) Encourage private sector involvement in 
fund raising efforts to support and promote 
the Athletes Against Crime program; 

(F) Coordinate with appropriate state and local 
agencies such as the Governor's Council on 



Substance Abuse Among Children and 
Youth to develop a comprehensive ap- 
proach to preventing crime, delinquency, 
and substance abuse among young people; 
(G) Other duties as assigned by the Governor. 

SECTION 4. ADMINISTRATION 

(A) The Department of Crime Control and 
Public Safety shall provide administrative 
support and staff as may be required. 

(B) Members of the Board shall serve without 
compensation but may receive reimburse- 
ment from the Department of Crime Con- 
trol and Public Safety, contingent on the 
availability of funds, for travel and 
subsistence expenses in accordance with 
state guidelines and procedures. 

(C) The heads of state departments and agen- 
cies are hereby directed to the extent per- 
mitted by law, to provide the Board 
information as may be requested by the 
Board in carrying out the purpose of this 
order. 

SECTION 5. EFFECTIVE DATE AND 
EXPIRATION DATE 

This Executive Order shall become effective 
immediately, and unless rescinded earlier by act 
of the Governor, will expire in accordance with 
North Carolina law two years from date it is 
signed. It is subject to reissuance at expiration. 

Done in Raleigh this 30th day of September, 
1987. 



419 



NORTH CAROLINA REGISTER 



JUDICIAL ORDKRS 



IN THE SUPREME COURT OF NORTH CAROLINA 



STATE OF NORTH CAROLINA 
EX REL. JAMES G. MARTIN 
AS GOVERNOR OF THE STATE 
OF NORTH CAROLINA AND AS 
A CITIZEN OF THE STATE 
OF NORTH CAROLINA 



No. 61PA87 -Wake 

ROBERT ARTHUR MELOTT, 
DIRECTOR, OFFICE OF 
ADMINISTRATIVE HEARINGS 
OF THE STATE OF NORTH 
CAROLINA 

Appeal by plaintiff from Preston, Judge, at the 1 December 1986 term of Superior Court, Wake 
County. A petition pursuant to N.C.G.S. § 7A-31 and Rule 15(a) of the North Carolina Rules of 
Appellate Procedure to bypass the Court of Appeals prior to its determination of the case was allowed. 
Heard in the Supreme Court 13 May 1987. 

The plaintiff, who is the Governor of North Carolina, brought this declaratory judgment action 
challenging the constitutionality of N.C.G.S. § 7A-752, which provides that the Chief Justice of the 
Supreme Court of North Carolina shall appoint the Director of the Office of Administrative Hearings 
of the State of North Carolina. The plaintiff alleged that this provision violates Article I, Sec. 6 of the 
Constitution of North Carolina, providing for the separation of powers, Article III, Sec. 1, providing 
that the executive power shall be vested in the Governor, and Article III, Sec. 5(8), of the Constitution 
of North Carolina, providing for appointment duties of the Governor. The plaintiff also challenged 
on the same grounds the constitutionality of N.C.G.S. § 7A-753, which provides the Director shall 
appoint five additional hearing officers. 

The plaintiff joined to the action a claim for a remedy in the nature of quo warranto, Article 41, 
Chapter 1 of the North Carolina General Statutes. The plaintiff alleged that the defendant, who was 
appointed Director of the Office of Administrative Hearings of the State of North Carolina by the 
Honorable Joseph Branch, Chief Justice of the Supreme Court of North Carolina, and was sworn into 
office on 1 January 1986, holds his office unconstitutionally. 

The defendant filed answer and the action was tried without a jury by Judge Preston at the 20 
October 1986 Civil Session of Superior Court, Wake County. On 1 December 1986, Judge Preston 
entered a judgment in which he held that N.C.G.S. §§ 7A-752 and 753 do not violate Article I, Sec. 6, 
or Article III, Sec. 1 and Sec. 5(8) of the Constitution of North Carolina. He also held that the General 
Assembly can constitutionally delegate to the Chief Justice of the Supreme Court of North Carolina 
the power to fill the office of the Director of the Office of Administrative Hearings and that the de- 
fendant lawfully holds the public office of Director of the Office of Administrative Hearings. The relief 
prayed for by the plaintiff in the nature of quo warranto to oust the defendant from office was denied. 
The plaintiff appealed. 

MOORE AND VAN ALLEN, by ARCH T. ALLEN, III and SARAH 
WESLEY FOX, for plaintiff appellant. 

LACY H. THORNBLRG, Attorney General, by ANDREW A. VANORE, 
JR., Chief Deputy Attorney General and THOMAS F. MOFFITT, for de- 
fendant appellee. 



NOR TH CAROLINA REGIS TER 420 



WEBB, Justice. 

This case brings to the Court the question of whether the General Assembly may delegate to the 
Chief Justice of the Supreme Court of North Carolina the power to appoint the Director of an agency- 
created by the General Assembly. The appellant contends the Constitution of North Carolina places 
this power of appointment in the Governor. We believe the resolution of this question depends to a 
large extent on the interpretation of Article III, Sec. 5(8) of the Constitution of North Carolina which 
provides: 

Appointments. The Governor shall nominate and by and with the advice 
and consent of the majority of the Senators appoint all officers whose appoint- 
ments are not otherwise provided for. 

In interpreting a constitution, as in interpreting a statute, if the meaning is clear from reading the words 
of the Constitution, we should not search for a meaning elsewhere. Elliott v. Gardner, 203 N.C. 749, 
166 S.E. 918 (1932) and Reade v. Durham, 173 N.C. 668, 92 S.E. 712 (1917). 

As we read Article III, Sec. 5(8), it is clear that it means the Governor has the power to appoint 
an officer of the State with the advice and consent of a majority of the Senators, unless there is some 
other provision for the appointment. In this case there is another provision. The General Assembly 
has provided for the the appointment of the Director of the Office of Administrate Hearings by the 
Chief Justice of the Supreme Court of North Carolina. We hold that the plain meaning of Article III, 
Sec. 5(8) does not give the Governor the appointment power under these circumstances. 

The appellant argues that the phrase "whose appointments are not otherwise provided for" has 
a settled judicial construction which is "whose appointments are not otherwise provided for by the 
Constitution itself." The power to appoint the Director of the Office of Administrative Hearings is not 
provided for in the Constitution. The appellant says that for this reason only the Governor may ap- 
point the Director of the Office of Administrative Hearings. The appellant relies on Salisbury v. 
Cromm. 167 N.C. 223, 83 S.E. 354 (1914); Ewart v. Jones, 116 N.C. 570, 21 S.E. 787 (1895); and 
People of North Carolina ex rel, Cloud v. Wilson, 72 N.C. 155 (1875), for this proposition. There is 
language to this effect in these cases, however, the language is not necessary to the holding in any of 
them. In Salisbury, while holding that the plaintiff was not the rightful holder of the office of Director 
of the State I lospital because his appointment had not been confirmed by the Senate as required by 
statute, the Court said that under the Constitution of 1868 "the term, 'unless otherwise provided for' 
meant unless otherwise provided for by the Constitution itself." The Court pointed out that this in- 
terpretation was not satisfactory to the people of the state and this provision of the Constitution was 
amended in 1875. In Ewart, the Court used this same language in discussing the Constitution of 1868, 
but said this provision of the Constitution had been amended in 1875. Cloud deals with the appoint- 
ment by the Governor of a superior court judge under the Constitution of 1868. This Court said "the 
words 'otherwise provided for' meant otherwise provided for by the Constitution," but the Court was 
interpreting a provision of the 1 868 Constitution which is not a predecessor provision to the provision 
at issue in this case. We cannot say that the phrase "whose appointments are not otherwise provided 
for" has such a well settled judicial construction that we must use it in this case. 

If we study the development of the present Article III. Sec. 5(8), we believe it strengthens our in- 
terpretation of it. Article III, Sec. 10 of the Constitution of 1868 said: 

. . . The Governor shall nominate, and by and with the advice and consent 
of a majority of the Senators elect, appoint all officers whose offices are estab- 
lished by this Constitution, or which shall be created by law, and whose ap- 
pointments are not otherwise provided for, and no such officer shall be 
appointed or elected by the General Assembly. 

It is apparent that this section of the 1868 Constitution gave the Governor a broad power to make 
appointments. The General Assembly was forbidden from making appointments. In 1875 this section 
was amended radically to strike the clauses "or which shall be created by law" and "and no such officer 
shall be appointed by the General Assembly" so that the section read as follows: 



42 1 NOR TH CAROLINA REGIS TER 



. . . The Governor shall nominate, and by and with the advice and consent 
of a majority of the Senators elect, appoint all officers whose offices are estab- 
lished by this Constitution, and whose appointments are not otherwise provided 
for. 

It is apparent that this amended section greatly diminished the Governor's appointment power. It 
limited the Governor's appointment power to offices established by the Constitution and even then he 
could not make such appointments if the appointments were otherwise provided for. In 1970 this 
section was again amended and became the present Article III, Sec. 5(8) of the Constitution. The 
amendment deleted the word "elect" and the clause "whose offices are established by this 
Constitution" so that the section now reads as set forth above. If the revisers of the Constitution had 
intended to give the Governor the power to appoint all officers whose appointments were not provided 
for in the Constitution, they could have easily done so. They did not and we believe it is only rea- 
sonable to conclude they intended to increase the Governor's power from making appointments of 
constitutional officers to all officers whose appointments are not otherwise provided for. 

The appellant also contends the statute violates Article I, Sec. 6 of the Constitution of North 
Carolina which says: 

The legislative, executive, and supreme judicial powers of the State govern- 
ment shall be forever separate and distinct from each other. 

The appellant further contends the statute violates Article III, Sec. 1 which says: 

The executive power of the State shall be vested in the Governor. 

The appellant argues that in our state government we have a separation of powers and relies on the 
writings of some of our founding fathers and others to say that this is one of the bedrocks of our liberty. 
He relies on Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982), which held that the General As- 
sembly cannot constitutionally create an administrative agency of the executive branch and retain some 
control over it by appointing legislators to the governing body of the agency. He argues that this 
principle should extend to prevent legislative control over an executive officer by providing for his ap- 
pointment by one other than the Governor. 

Wallace dealt with an appointment of legislators to the Environmental Management Commission. 
This Court held that it violated the separation of powers provision of the State Constitution for the 
General Assembly to appoint its own members to an agency of the executive branch. It does not hold 
that only the Governor may make appointments to the Commission. Wallace is not authority for this 
case. 

We have determined that under Article III, Sec. 5(8) of the Constitution, the General Assembly 
may provide that someone other than the Governor may appoint the Director of the Office of Ad- 
ministrative I learings. The question remains as to whether the General Assembly may provide that the 
Chief Justice of the Supreme Court may make this appointment. The dissent in this case says that the 
General Assembly may not so provide. This conclusion in the dissent is based on Article I, Sec. 6 of 
the Constitution, which provides for the separation of powers. The dissent goes to great lengths to 
prove that the Director of the Office of Administrative Hearings is in the executive branch and con- 
cludes that the appointment of the Director may not be made by the Chief Justice. We do not believe 
it is necessary to resolve this case to determine whether the Director is in the executive branch. As- 
suming that he is and assuming that Article I, Sec. 6 proscribes the Chief Justice from exercising an 
executive branch function, the question is whether the appointment of the Director is the exercise of 
executive power. 

We hold that the appointment of a Director of the Office of Administrative Hearings is not an 
exercise of executive power. The dissent says, "The appointment power is not exclusively legislative 
in nature and may be delegated." We conclude from this sentence that the dissent does not believe the 
appointment power is necessarily executive in nature. Article III, Sec. 1 of the Constitution provides 
that "The executive power shall be vested in the Governor" but it does not define executive power. 



NOR TH CAROLINA REGIS TER 422 



We believe it means "the power of executing laws." See Advisor)' Opinion In re Separation of Powers, 
305 N.C. 767, 774, 295 S.E.2d 589, 593 (1982). The appointment of someone to execute the laws does 
not require the appointing party to execute the laws. Article III, Sec. 5 of the Constitution lists the 
duties of the Governor. Subsection (4) of this section provides that "The Governor shall take care that 
the laws be faithfully executed." Subsection (8) provides for the appointment power of the Governor, 
lliis indicates that the appointment power is not the same as taking care that the laws are executed. 
We hold that it is not a violation of the separation of powers provision of our Constitution for the 
General Assembly to provide that the Chief Justice of the Supreme Court shall appoint the Director 
of the Office of Administrative Hearings. 

The citizens of this state have the right to distribute the governmental power among the various 
branches of the government, Lanier v. Vines, 274 N.C. 486, 164 S.E.2d 161 (1968), and we do not 
understand that the appellant contends otherwise. The United States Constitution does not limit this 
power. See Hughes v. Superior Court of California, 339 U.S. 460, 94 L.Ed. 985 (1950) and Colegrove 
v. Green, 328 U.S. 549, 90 L.Ed. 1432 (1946). In this case, we hold that the people have, by the 
Constitution of North Carolina, authorized the General Assembly to place appointment power in 
someone other than the Governor. The General Assembly has placed this appointment power in the 
Chief Justice of the Supreme Court of North Carolina. The Constitution of North Carolina and the 
Constitution of the United States do not prohibit this. 

The judgement of the superior court is AFFIRMED. 

Chief Justice Exum did not participate in the consideration or decision of this case. 

MEYER, J., concurring in result. 

As Martin, J., states in his dissent in this case, the dispositive issue here is whether such a legislative 
delegation of appointment power violates the constitutional principles of separation of powers. The 
dissent makes a good case for the proposition that this legislative delegation of appointment power to 
the Chief Justice is unwise. It does not convince me that such delegation is unconstitutional. 

The scope of judicial review of challenges to the constitutionality of legislation enacted by the 
General Assembly is well settled. As this Court stated in Glenn v. Board of Education, 210 N.C. 525, 
1S7 S.E. 781 (1936): 

It is well settled in this State that the courts have the power, and it is their 
duty in proper cases, to declare an act of the General Assembly unconstitutional 
-- but it must be plainly and clearly the case. If there is any reasonable doubt, 
it will be resolved in favor of the lawful exercise of their powers by the repre- 
sentatives of the people. 

Id. at 529-30, 187 S.E. at 784. 

I agree with the majority that the legislature can constitutionally delegate to the Chief Justice the 
power to appoint the Director of the Office of Administrative Hearings. I write separately because of 
my belief that the analysis employed by the majority in reaching this result is flawed. 

The majority reasons that the separation of powers issue turns on the nature of the Chief Justice's 
appointment of the Director as an exercise of executive power granted to the Governor in our consti- 
tution. My reasoning, however, dictates that the determination of the separation of powers issue turns, 
not on the nature of the appointment power, but on the nature of the powers and duties exercised by 
the person appointed. If the nature of the powers and duties to be exercised by the appointee are pri- 
marily executive in nature, the separation of powers provision of our constitution is violated. If they 
are primarily judicial in nature, the separation of powers provision is not violated. 

In State ex rel. Wallace v. Bone and Barkalow v. Harrington, 304 N.C. 591, 286 S.E. 2d 79 (1982), 
plaintiff sued two members of the North Carolma House of Representatives, challenging the 



423 \OR TH CA R OLINA REGIS TER 



constitutionality of their appointment as members of the North Carolina Environmental Management 
Commission (EMC). In holding their appointment to the Commission to be an unconstitutional vi- 
olation of separation of powers, our Court stated: "It is crystal clear to us that the duties of the EMC 
are administrative or executive in character and have no relation to the function of the legislative branch 
of government, which is to make laws." IcL at 608, 286 S.E.2d at 88. 

N.C.G.S. § 7A-752 specifically provides that the Chief Justice of the North Carolina Supreme 
Court shall appoint the Director of the Office of Administrative Hearings for the State of North 
Carolina. N.C.G.S. § 7A-752 (1986). 

The dissent concedes that the role played by the Director of the Office of Administrative Hearings 
is "quasi-judicial." In fact, contrary to what is stated in the dissenting opinion, it is predominantly 
judicial. Of the Director's twelve statutory powers and duties, two comprise the bulk of his activity. 
First, he is the chief administrative law judge in the State of North Carolina. N.C.G.S. § 7A-751 (1986). 
Second, as such, he may hear testimony, apply rules of evidence, regulate discovery, issue stays, and 
make findings of fact and conclusions of law. N.C.G.S. § 150B-33 (Cum. Supp. 1985). These judicial 
functions are the heart of his job and far outweigh the administrative- or executive-type powers and 
duties also provided for in the statute. Because I find that the statutory powers and duties of the Di- 
rector of the Office of Administrative Hearings are primarily judicial in nature, I do not find that the 
delegation to the Chief Justice of the power to appoint him violates the separation of powers. 

The majority's reasoning requires that whenever a question of this nature arises, a labeling of the 
delegated appointment power as legislative, executive, or judicial be made. This unnecessarily creates 
a continuing possibility of conflict between sections of our state constitution. This is contrary to our 
longstanding policy that, in the construction of the North Carolina Constitution, all cognate provisions 
are to be considered and construed together. Thomas v. Board of Elections, 256 N.C. 401, 124 S.E.2d 
164 (1962). The reasoning I adopt herein is consistent with this traditional policy in that it allows 
potentially conflicting constitutional provisions to be construed as valid. 

While I agree with the dissent that the delegation here is unwise, it is not the role of this Court to 
pass judgment on the wisdom and expediency of a statute. As this Court has recognized: 

The members of the General Assembly are representatives of the people. 
The wisdom and expediency of a statute are for the legislative department, when 
acting entirely within constitutional limits. The courts will not disturb an act 
of the law-making body unless it runs counter to a constitutional limitation or 
prohibition. 

Mclntyre v. Clarkson, 254 N.C. 510, 515, 119 S.E.2d 888, 891-92 (1961). 

The presumption is that an act passed by the Legislature is constitutional, 
and it must be so held by the courts unless it appears to be in conflict with some 
constitutional provision. The legislative department is the judge, within rea- 
sonable limits, of what the public welfare requires, and the wisdom of its 
enactments is not the concern of the courts. As to whether an act is good or 
bad law, wise or unwise, is a question for the Legislature and not for the courts 
-- it is a political question. The mere expediency of legislation is a matter for 
the Legislature, when it is acting entirely within constitutional limitations, but 
whether it is so acting is a matter for the courts. 

State v. Warren, 252 N.C. 690, 696, 1 14 S.E.2d 660, 666 (1960) (citations omitted). 

I do not mean to say that, under different circumstances, the principles of separation of powers 
would not render similar legislation unconstitutional. On the contrary, North Carolina, for more than 
two hundred years, has strictly adhered to these vital principles. Their importance to our system of 
government is fundamental and unquestioned. As the United States Supreme Court stated in 
O'Donoghue v. United States, 289 U.S. 516, 77 L. Ed. 1356 (1933): 



NORTH CAROLINA REGISTER 424 



This separation is not merely a matter of convenience or of governmental 
mechanism. Its object is basic and vital, Springer v. Philippine Islands, 277 
U.S. 189, 201, [72 L. Ed. 845, 849 (1928),) namely, to preclude a commingling 
of these essentially different powers of government in the same hands. 

Id. at 530, 77 L. Ed. at 1360. Where the legislature passes a statute which creates such commingling, 
this Court will not hesitate to hold that the statute violates the separation of powers provision of our 
state constitution. 

In sum, I agree with the majority that the legislature can constitutionally delegate to the Chief 
Justice of the North Carolina Supreme Court the power to appoint the Director of the Office of Ad- 
ministrative Hearings; however, I do so for reasons different than those relied upon by the majority. 

Justice Wichard joins in this concurring opinion. 

Justice Martin dissenting. 

Believing as I do that the grant by the legislature to the Chief Justice of the power to appoint the 
Director of the Office of Administrative Hearings violates the constitutional principles of separation of 
powers, I respectfully dissent. 

A few preliminary observations are appropriate: 

(1) No federal constitutional issues arise in this appeal. Highland Farms Dairy, Inc. v. 
Agnew, 300 U.S. 608, 81 L. Ed. 835 (1937). 

(2) The Constitution of North Carolina is a limitation of the powers of the General As- 
sembly, not a grant of power to it. Mitchell v. Financing Authority, 273 N.C. 137, 159 S.E.2d 
745 (1968). The General Assembly possesses all political power of the state not prohibited it or 
delegated to another branch of the government by the constitution. The Office of Governor has 
no such prerogative powers but is confined to the exercise of the powers conferred upon it by the 
constitution and statutes. 

(3) The General Assembly has the authority to appoint the Director of the Office of Ad- 
ministrative Hearings. The Governor's power of appointment is limited to officers whose ap- 
pointments are not otherwise provided for. N.C. Const, art. Ill, § 5(8). The appointment of the 
Director of the Office of Administrative Hearings is otherwise provided for. 

(4) The General Assembly has the power to delegate to another the authority to appoint 
the Director of the Office of Administrative Hearings. Motsinger v. Perryman, 218 N.C. 15, 9 
S.E.2d 511 (1940); Cunningham v. Sprinkle, 124 N.C. 638, 33 S.E. 138 (1899); 16 C.J.S. Consti- 
tutional law § 135, at 439. 

(5) The General Assembly has the power to delegate to the Attorney General the authority 
to appoint the Director of the Office of Administrative Hearings. The Attorney General is a 
member of the executive branch of government. The appointment power is not exclusively legis- 
lative in nature and may be delegated. The delegation of appointive powers to officers of the 
executive branch is generally proper. In re Community Association, 300 N.C. 267, 266 S.E. 2d 645 
(1980); Adams v. Dept. of N.E.R. and Everett v. Dept. of N.E.R., 295 N.C. 683, 249 S.E. 2d 402 
(1978); Jernigan v. State, 279 N.C. 556, 184 S.E. 2d 259 (1971). Upon such delegation, it would 
be appropriate for the Attorney General to appoint the Director of the Office of Administrative 
Hearings. 

I turn now to the question of whether the legislature can constitutionally delegate to the Chief 
Justice the power to appoint the Director of the Office of Administrative Hearings. In my view, the 
Director is an executive officer and constitutional principles of separation of powers proscribe the Chief 
Justice from making this appointment. 



425 NOR 77/ CAROLINA REGIS TER 



The statute in question purports to empower the Chief Justice of the North Carolina Supreme 
Court to appoint the Director of the Office of Administrative Hearings. 

The Director has the following statutory powers and duties: 

(1) He is the head of the Office of Administrative Hearings. N.C.G.S. § 7A-751 (1986). 

(2) He is the chief administrative law judge. kl 

(3) He shall appoint additional administrative law judges. N.C.G.S. § 7A-753 (1986). 

(4) He may designate and assign certain administrative law judges to preside over specific types 
of contested cases, kf 

(5) He shall take an oath of office. N.C.G.S. § 7A-754 (1986). 

(6) He may remove an administrative law judge for just cause. kf 

(7) He can administer oaths in any pending or potential contested case. N.C.G.S. 7A-756 (1986). 

(8) He can sign and issue subpoenas to witnesses. kk 

(9) He can apply to a judge of superior court for orders necessary to enforce powers conferred 
by Article 60 of Chapter 7A of the General Statutes of North Carolina, kk 

(10) He may contract with qualified persons to serve as hearing officers for specific assignments. 
N.C.G.S. §7A-757 (1986). 

(11) He may, at the request of an agency, provide a hearing officer to preside at hearings of public 
bodies not otherwise authorized to utilize a hearing officer from the Office of Administrative 
Hearings. N.C.G.S. § 7A-758 (1986). 

(12) He may hear testimony, apply rules of evidence, regulate discovery, issue stays, and make 
findings of fact and conclusions of law. N.C.G.S. § 150B-33 (Cumm. Supp. 1985). 

While some of the powers and duties of the Director may properly be described in part as being 
"quasi-judicial," they are not unique to the judiciary. They include administering oaths to witnesses, 
issuing subpoenas, hearing testimony, applying rules of evidence, regulating discovery, issuing stays, 
making findings of fact and conclusions of law, and recommending decisions. Various executive officers 
and members of the legislature can perform each of these functions, with the possible exception of 
regulating discovery. 

Legislators in committee hearings subpoena witnesses and documents and administer oaths, 
N.C.G.S. §§ 120-14, -15 (1986); hear testimony, apply rules of evidence, N.C.G.S. §§ 120-19.1, .2(1986); 
apply to judges of superior court for orders necessary to enforce powers of the legislature, N.C.G.S. § 
120- 19.4(b) (1986). 

Agents in the executive branch likewise can exercise these powers. The Employment Security 
Commission has statutory authority to so do, N.C.G.S. § 96-4 (1985); likewise, the Industrial Com- 
mission, N.C.G.S. §§ 97-79, -80 (1985). Consider the myriad of other state commissions and boards, 
for example, commissions and boards of architects, barbers, certified public accountants, contractors, 
dentists, morticians, nurses, opticians, pharmacists, physicians, real estate brokers, and sanitarians, ali 
of which have the authority to exercise these same powers in various ways. 

Surely, the majority would not approve the legislature delegating to the Chief Justice the power 
to appoint the chairman or members of any of these executive agencies. 

It is not enough to say that the Director of the Office of Administrative Hearings exercises some 
quasi-judicial powers and therefore this is a sufficient nexus to the judicial branch of government to 



NOR TH CA ROLINA REGIS TER 426 



allow the Chief Justice to make this appointment. Most of the duties and powers of the Director set 
out above are not quasi-judicial in nature but are purely administrative in character. Although the 
Director utilizes some quasi-judicial methods of dispute resolution, the issues before the Director and 
the Office of Administrative Hearings are administrative issues. It is only on appeal before the General 
Court of Justice that the legality of the actions is resolved. The courts are involved with judicial deci- 
sions while the Director and the Office of Administrative Hearings are concerned with administrative 
decisions. 

Of course, it is well recognized that the legislature cannot create a court not authorized by the 
constitution. N.C. Const, art. IV, § 1. Nor does the legislature purport to do so in this instance; the 
body created is an administrative agency, a part of the executive branch of government, not a part of 
the judicial branch. The legislature can delegate to the Chief Justice the power to appoint officers of 
the judicial branch, for example, Director and Assistant Director of the Administrative Office of the 
Courts, N.C.G.S. §§ 7A-341, -342 (1986); chief district court judges, N.C.G.S. § 7A-141 (1986); appel- 
late defender, N.C.G.S. § 7A-486.2 (1986); the Chief Judge of the Court of Appeals, N.C.G.S. § 7A-16 
(1986). The clerk of the Supreme Court is appointed by the Supreme Court, N.C.G.S. § 7A-1 1 (1986), 
and the clerk of the Court of Appeals by the Court of Appeals, N.C.G.S. § 7A-20 ( 1986). Senior res- 
ident supenor court judges appoint their public defenders, N.C.G.S. § 7A-466 (1986), magistrates, 
N.C.G.S. § 7A-171 (1986). and court reporters, N.C.G.S. § 7A-95 (1986). 

The appointments above noted are to offices that are within the judicial branch of government; 
the Director of the Office of Administrative Hearings is within the executive branch of government. 
Our constitution provides: "The legislative, executive, and supreme judicial powers of the State gov- 
ernment shall be forever separate and distinct from ench other." N.C. Const, art. I, § 6. This provision 
must be strictly construed by the Court. State ex rel. Wallace v. Bone and Barkalow v. Harrington, 
304 N.C. 591, 286 S.E.2d 79 (1982). (This opinion contains an excellent exposition on the doctrine 
of separation of powers.) One of the primary objectives of the doctrine of separation of powers is to 
preserve and protect the independence of the judiciary. 

The reasoning of the Massachusetts court in Opinion of the Justices, 365 Mass. 639, 309 N.E.2d 
476 (1974), is compelling. The legislature of Massachusetts created an electronic data commission and 
provided for appointment of two members of the commission by the Chief Justice of the Supreme 
Judicial Court of Massachusetts. In an advisory opinion, the Massachusetts court held that the legis- 
lation would be unconstitutional as a violation of the doctrine of separation of powers. The court 
reasoned that although the legislature could delegate the appointive power, it could not confer the 
power of appointment upon the judicial branch of government with respect to officials not exercising 
a judicial function or one incidental to the exercise of judicial powers. The people of Massachusetts 
have removed the judiciary from political influences of every kind. See also Nelson et al. v. City of 
Miller, S3 S.D. 611. 163 N.W.2d 533 (1968). 

I view the Massachusetts case as applying equally to the present controversy. Our Chief Justice 
can appoint officers whose duties are closely connected with the judicial work of the Court, for exam- 
ple, the Director of the Administrative Office of the Courts, but cannot appoint officers such as the 
Director of the Office of Administrative Hearings, whose work would affect the functioning of the other 
two branches of government. While the Director's duties may be in some sense incidental to the 
function of the courts, it is in reality much broader than that. It is plain that the Director does not 
exercise judicial powers; the constitution prohibits such. N.C. Const, art. IV, § 1. Likewise, the powers 
of the Director are not incidental to the exercise of judicial powers by the courts. The actions of the 
Office of Administrative Hearings create additional legal issues properly to be resolved by the judicial 
branch, but its actions are not otherwise incidental to the exercise of judicial power by the courts. 

The article establishing the Office of Administrative Hearings itself states that its purpose is to 
provide "a source of independent hearing officers . . .[to] thereby prevent the commingling of legislative, 
executive, and judicial functions in the administrative process." N.C.G.S. § 7A-750 (1986). By con- 
ferring the power to appoint the Director upon the Chief Jus'.ice, the legislature has defeated the very 
purpose of its statute by commingling the legislative and judicial functions. 

In summary, I find that the Governor has no authority to appoint the Director of the Office of 
Administrative Hearings unless it is granted to him by the General Assembly. The General Assembly 



427 NOR TH CAROLINA REGIS TER 



can delegate the appointment of the Director to another official. In so doing, it must not violate the 
constitutional principles of separation of powers. Conferring this power of appointment upon the 
Chief Justice violates the constitutional principles of separation of powers, and that portion of the 
statute is unconstitutional. 

By placing the yoke of this appointive power upon the Chief Justice, the judicial branch has been 
cast adrift upon uncharted waters amid the rocky shoals of political influence. The genius of the doc- 
trine of separation of powers is to prevent such result. 



NOR TH CA ROLINA REGIS TER 428 



PROPOSED RULES 



TITLE 1 DEPARTMENT OF 
ADMINISTRATION 

IV otice is hereby given in accordance with G.S. 
J SOB- J 2 that the Department of Administration 
intends to repeal regulation cited as I NCAC IB 

.0404. 

1 he proposed effective dale of this action is 
February I, 19S8. 

1 he public hearing will be conducted at 10:00 
a.m. on November 14, 1987 at Williamsburg 
Room. First Floor, Administration Building, 116 
West Jones Street, Raleigh. NC 27603-8003. 



Cc 



Co 



omment Procedures: Any interested person 
may present his or her views and comments in 
writing prior to or at a hearing or orally at the 
hearing. Any person may request information, 
permission to be heard or copies of the proposed 
regulations by writing or calling Fran Fomlin, 
Department of Administration, 116 West Jones 
Street, Raleigh. North Carolina 27603-8003, tele- 
phone 919-733-7232. 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER IB - DEPARTMENTAL 
ADMINISTRATIVE PROCEDURES 

SECTION .0400 - RULEMAKING HEARINGS: 
LOCATION: PARTICIPATION 

.0404 WHO SHALL HEAR CONTESTED 
CASES (REPEALED) 

Statutory Authority G.S. 150B-32. 

TITLE 2 - DEPARTMENT OF 
AGRICULTURE 



1\ otice is hereby gh-en in accordance with G.S. 
1 SOB- 12 that the North Carolina Pesticide Board 
intends to adopt and amend regulations cited as 
2NCAC9L .1006 and .1111. 



Th 



he proposed effective date of this action is 
March 1, 1988. 

1 he public hearing will be conducted at 2:00 
p.m. on December 3, 19S 7 at Board Room, Agri- 
culture Building, One Edenton Street, Raleigh. 
NC 2761 I. 



omment Procedures: Interested person may 
present statements either orally or in writing at the 
public hearing or in writing prior to the hearing 
by mail addressed to John L. Smith, Secretary, 
North Carolina Pesticide Board, P.O. Box 27647, 
Raleigh, North Carolina 2761 1 . 

CHAPTER 9 - FOOD AND DRUG PROTECTION 
DIVISION 

SUBCHAPTER 9L - PESTICIDE SECTION 

SECTION .1000 - AERIAL APPLICATION OF 
PESTICIDES 

.1006 EXEMPTIONS 

No person or procedure or spraying and 
spreading system for aerial application of pesti- 
cides shall be exempt from any of the provisions 
of this Section except under these conditions: 
(3) Any state, federal or public agency or aerial 
applicator under contractual agreement with 
and under supervision of such an agency 
when conducting a pest control operation 
ohall mav. upon approval by the board, be 
exempted from 2 NCAC 9L .1005(b) to (e), 
Restricted Areas, and .1002(i), General Re- 
quirements, provided th e y In order to apply 
for an exemption, the agency or applicator 
must present to the board a complete de- 
scription of the operation in writing 30 days 
prior to the proposed initiation of the sub- 
ject operation. 



Statutory Authority G.S. 
(2), (5); 143-463. 



143-458; 143-461(1), 



SECTION .1 100 - PRIVATE PESTICIDE 
APPLICATOR CERTIFICATION 

.1111 CERTIFICATION/RECERTIFICATION 
FEE 

A nonrefundable fee of six dollars ($6.00) shall 
be required for private pesticide applicator certif- 
ication or recertification. 

Statutory Authority G.S. 143-440(b). 

TITLE 4 - DEPARTMENT OF COMMERCE 

iV otice is hereby given in accordance with G.S. 
1 SOB- 12 that the North Carolina Cemetety Com- 
mission intends to adopt and amend regulations 
cited as 4 NCAC S A .0106 and .0/07. 



Th 



he proposed effective date of this action is 
March 1, 1988. 



429 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



1 he public hearing will be conducted at 10:00 
a.m. on December 17, 1987 at Room 2063, Dobbs 
Building, 430 North Salisbury Street, Raleigh, NC 
27611. 

(comment Procedures: Written comments may 
be sent to the Cemetery Commission, Post Office 
Box 25249. Raleigh, NC 27611. Requests for 
opportunities to present oral testimony and a 
summary of the testimony must be received at this 
address by December 14, 1987. 

CHAPTER 5 - CEMETERY COMMISSION 

SUBCHAPTER 5A - ORGANIZATION 

SECTION .0100 - GENERAL INFORMATION 

.0106 FEES 

In addition to the licensing and penalty fees 
provided by statute to this commission, the fol- 
lowing fees are provided after April 4-7 197 8 : 
Octoher 1, 1987: 

(1) Sovonty fivn eeate ($0.75) One dollar ($1.00) 
per grave space, mausoleum crypt, and niche 
when deeded; 

(2) ?4wee dollars ($3.00) Four dollars ($4.00) 
per vault when contracted; 

(3) fl«ee dollarr . ($3.00) Four dollars ($4.00) 
per each crypt in a bank of below ground 
crypts or lawn crypt garden when contracted 
before completion or one dollar ($1.00) per 
each crypt when contracted after com- 
pletion. An additional seventy fivo cents 
($0.75) one dollar ($1.00) shall be paid for 
each crypt when deeded as provided in Item 
1 of this Rule; 

(4) ¥hw« dollaro ($3.00) Four dollars ($4.00) 
per pre-need memorial; 

(5) :fh«e dollaro ($3.00) Four dollars ($4.00) 
per pre-constructed mausoleum crypt or 
niche when contracted before completion or 
one dollar ($1.00) per crypt or niche when 
contracted after completion. An additional 
seventy fivo eefrt* ($0.75) one dollar ($1.00) 
shall be paid for each crypt or niche when 
deeded as provided in Item 1 of this Rule; 

(6) All at need merchandise, cash or credit 
sales, do not require any assessments. 

Statutory Authority G.S. 65-49; 65-54; 1 SOB- 10. 

0107 CEMETERY LICENSE FEE 

The annual cemetery' license fee shall be three 
hundred dollars ($300.00). 

Statutory Authority G.S. 65-49; 65-54. 



IS otice is hereby given in accordance with G.S. 
150B-12 that the North Carolina Seafood Indus- 
trial Park Authority intends to adopt regulations 
cited as 4 NCAC 17 .0101 - .0102; .0201 - .0203. 

1 he proposed effective date of this action is 
February 1, 1988. 



Th 



he public hearing will be conducted at 8:00 
p.m. on November 16, 1987 at Wanchese Com- 
munity Building, Old Schoolhouse Road, 
Wanchese, North Carolina. 



Cc 



- ommenl Procedures: Comments taken from 
floor upon recognition of speaker by meeting 
chairman. 

CHAPTER 17 - SEAFOOD INDUSTRIAL PARK 
AUTHORITY 

SECTION .0100 - ORGANIZATION OF 
SEAFOOD INDUSTRIAL PARK AUTHORITY 

.0101 IDENTIFYING INFORMATION 

The principal office of Seafood Industrial Park 
Authority is located at: 

Wanchese Seafood Industrial Park 

Harbor Road 

Wanchese, North Carolina 27981 

Statutory Authority G.S. 113-315.29(8). 

.0102 FUNCTIONS AND POWERS 

The authority is created to develop, construct, 
equip, maintain and operate the Seafood Indus- 
trial Parks within the state and in furtherance of 
that end to accomplish the purposes set out in 
G.S. 113-315.28. To accomplish those purposes, 
the authority has those powers set out in G.S. 

113-315.29. 

Statutory Authority G.S. 113-315.28; 113-315.29. 
SECTION .0200 - REGULATION OF DOCKAGE 

.0201 DEFINITIONS 

Dockage is the charge assessed against a vessel 
or other water craft for berthing or making fast 
to any wharf, mooring device or other facility of 
the authority or for mooring to a vessel so 
berthed. 

Statutory Authority G.S. 113-3/5.29(10). 

.0202 RATES: FEES AND PENALTIES 

(a) Dockage will be computed on the basis of 
overall length of vessel. 



NORTH CAROLINA REGISTER 



430 



PROPOSED RULES 



(b) An annual fee of five dollars and fifty cents 
($5.50) per lineal foot or fractional part thereof 
shall be charged all vessels or other water craft 
using the Wanchese Seafood Industrial Park 
docks, tie-up space alongside the concrete dock 
and for second or third boat abreast mooring. 

(c) The fee shall be paid, in advance, on an 
annual or semiannual basis for docking privi- 
leges. 

(d) Checks should be made payable to the NC 
Seafood Industrial Park Authority and mailed to: 
Administrator, Wanchese Seafood Industrial 
Park, P.O. Box 549, Wanchese, N.C. 27981, or 
payment may be delivered to the Office of Ad- 
ministration, Wanchese Seafood Industrial Park, 
Harbor Road. Wanchese, N.C. 

(e) A permit will be issued upon payment of 
annual or semiannual dockage fees, and a decal 
will be provided which must be displayed on the 
vessel so as to be seen from the dock. 

(f) Payment of annual or semiannual fees shall 
entitle a vessel to docking privileges for normal 
turnaround time between trips, using any avail- 
able dock space under the jurisdiction of the Park 
Authority on a first come, first served basis. 
Normal turnaround time shall mean not more 
than seven days between trips. 

(g) Any extra time beyond seven days must be 
specifically authonzed by Dock Security or the 
Park Administrator and will be assessed at a per 
diem rate of fifty cents ($0.50) per linear foot for 
sports or pleasure vessels and twenty-five cents 
($0.25) per linear foot for commercial vessels. 

(h) A fee in the amount of twenty-five dollars 
($25.00) will be assessed against any vessel leav- 
ing refuse on the dock. In addition, a fine of up 
to fifty dollars ($50.00) may be assessed against 
any vessel departing the premises and leaving 
behind trash, debris, equipment, or other mate- 
rial requiring cleanup by the Park Administrator. 

(i) A service fee of twenty-five dollars ($25.00) 
will be charged any vessel taking on water by 
means of a metered fire hydrant along with 
charges for actual water usage according to the 
water rate schedule established by the authority 
for all users within the Seafood Park. 

(j) A fine of up to fifty dollars ($50.00) shall 
be assessed against any vessel whose crew is 
found to have thrown trash, debris, or fish into 
the harbor while berthed at the authority dock. 

(k) Dockage fees shall not include payment for 
water, electricity or other ancillary services. 

Statutory Authority G.S. 113-315.29 (Sj, (9), 
(10); 113-315.34. 

.0203 GENERAL REGULATIONS FOR USE 
OF DOCK FACILITIES 



(a) As necessary, United States Coast Guard 
and Army Corp of Engineers vessels, whether 
government owned or under private contract, will 
be given priority for dockage. 

(b) Except as set forth in Subsection (a) above, 
docks are available to active commercial fishing 
vessels on a first come, first served basis for 
short-term dockage. No vessel shall remain for 
a continuous period of more than seven days 
without special authorization from Dock Secu- 
rity or the Park Administrator. 

(c) All fishing gear must be stowed inside rails 
of vessels to prevent chafing or damage to the 
dock structures or to other vessels. 

(d) The storage of fishing gear, equipment, 
materials or supplies will not be allowed on any 
wharf or property under the jurisdiction of the 
Park Authority without prior approval of the 
Park Administrator. 

(e) Yachts, tugs, barges or any other vessel not 
classified as a commercial fishing vessel, except 
as otherwise authorized, shall not be issued 
docking permits and cannot dock at wharves 
under the jurisdiction of the Park Authority 
without prior approval of the Park Administrator 
or his designated representative. 

(f) Sandblasting or spray painting of any vessel 
berthed at the authority's docks is prohibited. 

(g) There shall be no offloading of seafood 
onto any vessel, vehicle or receptacle from the 
docks within the park except as such offloading 
relates to persons doing business with seafood 
dealers who are tenants of the Seafood Industrial 
Park. 

(h) Receptacles and containers for trash are 
provided for vessel debris only. Vessel owners 
shall be responsible for the removal of large items 
of discarded equipment or other large or heavy 
items. 

(i) There shall be no hauling or marking of 
trawl wires utilizing the base of light fixtures or 
other authority structures or done in any manner 
which may cause damage to any property within 
the jurisdiction of the Park Authority. 

(j) All vehicular traffic must approach the dock 
front from access roadways provided. 

(k) Vehicles shall not be parked on the concrete 
dock front, unless loading or offloading supplies 
or equipment or servicing vessels. 

(1) .Any unattended vehicle or equipment which 
is impeding traffic or preventing the conduct of 
business alongside the wharves, or which is left 
on the premises for 15 days or more without au- 
thorization may be towed away or removed at 
the owner's expense. 

(m) All fuel trucks, ice trucks or other service 
vehicles shall conduct their business so as not to 
interfere with other users of the facilities and shall 



431 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



insure that oil and gasoline is prevented from es- 
caping into the ground, water or on the docks. 

(n) Vessels will be assessed for any damages 
caused by them or their crews to the bulkheads 
or dock structures or any other property of the 
Park Authority. 

(o) The Seafood Industrial Park Authority 
shall not be responsible or liable for any theft, fire 
or other damage to persons, vessels or property 
while using the authority facilities, it being the 
responsibility of vessel owners to secure and 
safeguard their vessels and property to their own 
satisfaction. 

(p) Vessels and their owners refusing to comply 
with the rules and regulations set forth herein 
may be denied docking privileges at the authority 
facilities. 

Statutory Authority G.S. 113-315.29; 113-315.34; 
113-315.37. 



SECTION .0700 - HIGH RISK MATERNITY 
CLINIC FUNDS 

.0701 GENERAL (REPEALED) 
.0702 APPLICATION FOR FUNDS (REPEALED) 
.0703 BUDGETING OF FUNDS (REPEALED) 
.0704 CLIENT AND THIRD PARTY FEES 

(REPEALED) 
.0705 CLIENT ELIGIBILITY (REPEALED) 
.0706 AUTHORIZATION AND 

REIMBURSEMENT (REPEALED) 
.0707 SCOPE OF SERVICES (REPEALED) 
.0708 USUAL STAFFING (REPEALED) 
.0709 WRITTEN POLICIES AND PROCEDURES 

(REPEALED) 
.0710 FACILITY AND EQUIPMENT (REPEALED) 
.0711 MONITORING AND EVALUATION 

(REPEALED) 
.0712 PROVIDER ELIGIBILITY (REPEALED) 

Statutory Authority G.S. BOA- 127. 



TITLE 10 



DEPARTMENT OF HUMAN 
RESOURCES 



1\ otice is hereby given in accordance with G.S. 
1 SOB- 12 that The Division of Health Services in- 
tends to adopt, amend, and repeal regulations 
cited as 10 NCAC 8G .0701 - .0723; 10 A .0443; 
.0446; .0448; 10F .0029; .0032 - .0035; .0039; 
.0042; 10G .0101; .0/03 - .0105; .0107 - .0108; 
.0201 - .0203; .0502 - .0505; .0510; .0704; and 
12 .0239. 

1 he proposed effective date of this action is 
February 1, 1988. 

1 he public hearing will be conducted at 1 :30 
p.m. on November 16, 1987 at Highway Building, 
Auditorium (First Floor), 1 South Wilmington 
Street, Raleigh, North Carolina. 

Comment Procedures; Any person may request 
information or copies of the proposed rules by 
writing or calling John P. Barkley, Agency Legal 
Specialist, Division of Health Services, P.O. Box 
2091, Raleigh, North Carolina 27602-2091, (919) 
733-3131 . Written comments on these subjects 
may be sent to Mr. Barkley at the above address. 
Written and oral (for no more than ten minutes) 
comments on these subjects may be presented at 
the hearing. Notice should be gh-en to Air. 
Barkley at least three days prior to the hearing if 
you desire to speak. 

CHAPTER 8 - HEALTH: PERSONAL HEALTH 

SUBCHAPTER 8G - PERINATAL CARE 



.0713 GENERAL 

(a) High risk maternity clinics provide prenatal 
services to eligible clients. 

(b) The Maternal and Child Health Branch 
provides funds to support staffing and operating 
costs of contracted high risk maternity clinics. 
High risk maternity clinic funds may also be used 
to purchase outpatient diagnostic, medical 
consultative services, prescribed medications not 
available in the high risk maternity clinics, and 
patient transportation. The use of high risk ma- 
ternity clinic funds for such services shall be 
pursuant to Rule .0718 of this Section. 

(c) The initiation and annual renewal of con- 
tracts for high risk maternity clinics are subject 
to the availability of funds and assessment of 
performance as specified in these Rules. 

(d) Information concerning the identity and 
location of high risk maternity clinics may be 
obtained from the Maternal and Child Health 
Branch, Division of Health Services, P.O. Box 
2091, Raleigh, N.C. 27602. 

Statutory Authority G.S. 130 A- 127. 

.0714 APPLICATION FOR FUNDS 

(a) Application for funds allocated under this 
Section shall be sent to the Maternal and Child 
Health Branch. A copy of the application shall 
be sent to the respective Regional Perinatal 
Committee. The application shall include the 
following components: 

(1) an assessment of the need for high risk 
maternity services, including the area to 
be served by the clinic; 

(2) a description of any problems identified 
and strategies for addressing them; 



NORTH CAROLINA REGISTER 



432 



PROPOSED RULES 



(3) measurable program objectives to include, 
but not to be limited to the following: 

(A) estimates of the annual number of pa- 
tients to be served from each county of 
the service area; 

(B) estimates of the annual number of pa- 
tient visits to the clinic; and 

(C) if funds are being requested for outpa- 
tient diagnostic, medical consultative ser- 
vices prescribed medications, and patient 
transportation, an estimate of the num- 
bers of patients to receive this assistance 
and how the funds are to be utilized. 

(4) a description of the medical eligibility re- 
quirements for clinic admission to include 
a list of medical conditions which list has 
been negotiated with referring clinics; 

(5) a description of financial eligibility re- 
quirements, if any, for admission; 

(6) a plan to implement and maintain multi- 
disciplinary team care, as described in 
Section .0708 of these Rules; 

(7) a description of how high risk maternity 
clinic services will be coordinated with 
existing medical and community re- 
sources; 

(8) identification of the local hospital where 
high risk clinic deliveries will be performed 
and the specialties of physicians who will 
perform the deliveries of the high risk 
maternity clinic patients; 

(9) a description of the applicant's local 
quality assurance program, which must 
include the following: 

(A) provisions for an internal, periodic high 
risk maternity program assessment to be 
conducted at least once a year, which shall 
include: 

(i) an audit of clinical records; 

(ii) a review of delivery funds or high risk 

maternity clinic reimbursement records; 

(hi) a review of state or local reports and 

statistics to monitor progress in meeting 

stated objectives; 

(iv) documentation of review findings; 
(v) development of updated objectives 
and a timetable for corrective action 
toward making necessary improve- 
ments; 

(B) involvement in the quality assurance 
program of each discipline providing high 
risk maternity clinic services; and 

(C) provisions for staff development and 
training opportunities. 

(10) a proposed budget; and 

(11) letters from the following providers which 
state their commitment to participate in 



the delivery of services supported through 
these grants: 

(A) the hospital at which it is anticipated 
that most high risk maternity clinic deliv- 
eries will be performed; 

(B) those local obstetricians and pediatri- 
cians who will participate in the delivery 
of services supported through these grants; 

(C) the local health departments of all 
counties to be included in the service area; 
and 

(D) other human service organizations and 
agencies that will provide support services 
for high risk maternity clinic patients. 

(b) Technical assistance in preparing an appli- 
cation or updating a plan is available from the 
central and regional Maternal and Child Health 
staff. 

(c) The Regional Perinatal Committee shall 
review the proposal and make recommendations 
to the Maternal and Child Health Branch within 
45 days of the committee's receipt of the appli- 
cation. These recommendations may include 
proposed conditions of acceptance. 

(d) The Maternal and Child Health Branch 
shall review the application along with the re- 
commendation of the Regional Perinatal Com- 
mittee. The Maternal and Child Health Branch 
shall approve or deny an application for grant 
funds or request additional information within 
60 days after receipt of an application. If addi- 
tional information is requested, the local provider 
shall have 45 days to submit the information. 
Failure by the local provider to submit the addi- 
tional information requested within 45 days shall 
be grounds for denying the grant proposal. 
Upon receipt of the additional information, the 
Maternal and Child Health Branch shall approve 
or deny a grant proposal within 45 days. 

(e) Once approved and funded by the di\ision, 
the application becomes the clinic plan. The 
plan shall be updated at least every three years 
and shall incorporate all changes occurring in 
staffing, facility and operating policies and pro- 
cedures. Updated plans shall be reviewed and 
approved by the Maternal and Child Health 
Branch. 

Statutory Authority G.S. I30A-127. 

.0715 BUDGETING OF FUNDS 

Upon receipt of an application for funds, a 
budget shall be negotiated between the grantee 
and the Maternal and Child Health Branch. A 
contract between the division and the applicant 
cannot be executed until a budget is agreed upon 
and approved. 



433 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



Statutory Authority G.S. I30A-I27. 

.0716 CLIENT AND THIRD PARTY FEES 

(a) A perinatal program high risk maternity 
clinic may establish a sliding fee scale for charging 
clients for services provided by the clinic. The 
sliding fee scale shall reflect income, resources, 
and family size of clients. Charges will not be 
imposed with respect to sendees provided to 
families whose income is below the nonfarm in- 
come official poverty line defined by the Federal 
Office of Management and Budget and revised 
annually in accordance with Section 624 of the 
Economic Opportunity Act of 1964. 

(b) If client fees are charged, providers must 
make reasonable efforts to collect from third 
party payors. 

(c) .All fees collected from clients and third 
party payors shall be used, upon approval of the 
program, to expand high risk maternity clinic 
services or to reduce contract payments under the 
perinatal program high risk maternity clinic 
funds. 

Statutory Authority G.S. 1 30 A- 1 27. 

.0717 CLIENT ELIGIBILITY 

(a) To be eligible for services provided by a 
high risk maternity clinic, clients must meet the 
following: 

(1) financial eligibility requirements, if any, 
established by the clinic; these require- 
ments shall not be more restrictive than 
the official Federal Poverty Guidelines; 
and 

(2) medical eligibility requirements established 
by the clinic. Any changes in medical el- 
igibility criteria must be approved by the 
Maternal and Child Health Branch. 

(b) A high risk maternity clinic shall provide in 
writing its financial and negotiated medical eligi- 
bility criteria with all referring prenatal providers 
in the area served. These providers shall also be 
informed in writing of any changes in clinic fi- 
nancial and medical eligibility criteria. 

Statutory Authority G.S. 1 30 A- 1 27. 

.0718 REIMBURSEMENT 

(a) Reimbursement for the provision of out- 
patient diagnostic, medical consultative services 
and prescribed medications shall not exceed the 
Medicaid rate in effect at the time the claim is 
received by the high risk maternity clinic. 

(b) Reimbursement for patient transportation 
shall not: 

(1) exceed the state's maximum travel allow- 
ance per vehicle mile for expenses of a 



privately-owned motor vehicle as estab- 
lished in G.S. 138-6 or the customary 
charges of a public conveyance; or 
(2) be made to a patient. 

(c) Reimbursement shall not be made for ser- 
vices which are covered by a third party payor. 
Providers must take reasonable measures to de- 
termine and subsequently collect the legal liabil- 
ity of third party payors to pay for sendees 
provided. If, after the high risk maternity clinic 
makes payment for particular senices, the pro- 
vider, the patient, or a person responsible for the 
patient receives partial or total payment for the 
senices from a third party payor, the person re- 
ceiving the payment must reimburse the high risk 
maternity clinic to the extent of the amount re- 
ceived by the person without exceeding the 
amount of the high risk maternity clinic's prior 
payment to the provider. 

(d) Payment for senices at the Medicaid rate 
is considered payment in full and the provider 
shall not bill the patient. 

(e) A claim for payment must be submitted to 
the high risk maternity clinic within 180 days af- 
ter completion of the service. The high risk ma- 
ternity clinic shall make payment to the provider 
within 45 days after receipt of a valid claim for 
payment. 

Statutory Authority G.S. 130A-127. 

.0719 SCOPE OF SERVICES 

(a) A high risk maternity clinic shall conduct, 
at a minimum, a weekly multidisciplinary 
prenatal clinic as defined in this Section and the 
annual contract. 

(b) A high risk maternity clinic shall serve the 
area specified in the approved application for 
funds. 

(c) Providers may not utilize high risk mater- 
nity clinic funds for the following: 

(1) purchase of inpatient care; 

(2) cash payments to direct recipients of 
health senices; 

(3) purchase or improvement of land; 

(4) purchase, construction, or permanent im- 
provement (other than minor remodeling) 
of any building or other facility; 

(5) purchase of major medical equipment; 

(6) abortion; or 

(7) sterilization. 

(d) Within the senice limitations of this Sec- 
tion and commensurate with funds available to 
pay for those senices as specified in the approved 
contract budget, the number and scope of ser- 
vices offered will be negotiated annually with 
each high risk maternity clinic, approved by the 



NORTH CAROLINA REGISTER 



434 



PROPOSED RULES 



Maternal and Child Health Branch, and detailed 
in the addendum of the contract. 

Statutory Authority G.S. 130A-127. 

.0720 STAFFING 

Each high risk maternity clinic shall be staffed 
as follows: 

( 1 ) a board certified obstetrician or a physician 
who has satisfactorily completed an ap- 
proved residency in obstetrics and 
gynecology; 

(2) a registered nurse coordinator with a mas- 
ters or a baccalaureate degree in nursing or 
a health-related field with at least one year 
of experience in maternity nursing or an as- 
sociate degree or diploma in nursing with 
education in maternity nursing beyond the 
basic preparation and a minimum of three 
years of experience in maternity nursing; 

(3) a nutritionist with a masters degree in nu- 
trition and experience in managing clinical 
nutrition problems of pregnant women or a 
registered dietitian with experience in man- 
aging clinical nutrition problems of pregnant 
women; and 

(4) a social worker with a masters degree in 
social work and one year of experience in 
assessment and counseling of pregnant 
women and their families or a bachelors de- 
gree in social work and three years of expe- 
rience in assessment and counseling of 
pregnant women and their families. 

Statutory Authority G.S. 1 30 A- 1 27. 

.0721 FACILITY AND EQUIPMENT 

Each high risk maternity clinic shall provide at 
least the following facilities: 

(1) a waiting room; 

(2) an intake interview room; 

(3) offices for patient assessments and consul- 
tations that provide for privacy and are 
available for each professional discipline; 

(4) an area for taking weights, blood pressures, 
and blood specimens; 

(5) a toilet facility; 

(6) a laboratory' area; 

(7) a minimum of two equipped examining 
rooms for each examining clinician; and 

(8) an area for conducting patient education 
classes during clinic hours. 

Statutory Authority G.S. 130A-127. 

.0722 MONITORING AND EVALUATION 

(a) Each high risk maternity clinic shall report 
client and service data throuah the Health Ser- 



vices Information System (HSIS). Data may be 
submitted on hard copy forms provided by the 
division, diskette, or magnetic tape. Data must 
be submitted on no less than a monthly basis. 

(b) Annual program reviews will be conducted 
to assess compliance with the requirements of 
this Section and to provide technical assistance. 
At least once every three years, the Maternal and 
Child Health Branch shall conduct a program 
review of each high risk maternity clinic which 
will include a multidisciplinary site visit. 

(c) Any high risk maternity clinic that consist- 
ently fails to meet acceptable levels of perform- 
ance as determined through site reviews or data 
from the Health Services Information System 
and has been offered state consultation and 
technical assistance, may have high risk maternity 
clinic funding reduced or discontinued. Rec- 
ommendations to reduce or discontinue funding 
provided to a high risk maternity clinic must be 
reviewed and approved by the Maternal and 
Child Care Section Chief and the State Health 
Director. 

Statutory Authority G.S. 130A-127. 

.0723 PROVIDER ELIGIBILITY 

(a) A county or district health department or 
other public or private nonprofit health care 
agency may be a local provider and receive funds 
pursuant to these Rules. 

(b) Notwithstanding 10 NCAC 8G .0504, a 
for-profit provider may be considered a local 
provider for the purposes of this Rule if the di- 
vision determines through a process of request 
for application that a nonprofit health care pro- 
vider is not available within the perinatal region. 
Eunding for training and research may not be 
granted to for-profit agencies. 

Statutory Authority G.S. 130A-127. 

CHAPTER 10 - HEALTH SERVICES: 
ENVIRONMENTAL HEALTH 

SUBCHAPTER 10A - SANITATION 

SECTION .0400 - SANITATION OF 

RESTAURANTS AND OTHER 

FOODHANDLING ESTABLISHMENTS 

.0443 DEFINITIONS 

The following definitions shall apply in the in- 
terpretation and enforcement of this Section: 

(22) "Temporary restaurant" means a restau- 
rant, as defined in (43} ( 16) of this Rule, that 
operates for a period of two weeks or less, 
as in connection with a fair, carnival, circus, 
public exhibition, or other similar gathering. 



435 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



Statutory Authority G.S. 130A-248. 

.0446 REINSPECTIONS 

(b) In the case of establishments which request 
an inspection for the purpose of raising the al- 
phabetical grade, and which hold unrevoked 
permits, the sanitarian shall make an unan- 
nounced inspection after the lapse of a reasonable 
period of time, not to exceed 1Q 15 days, from the 
date of the request. 

Statutory Authority G.S. J30A-248. 

.0448 GRADING 

(c) Food sampling inspection results shall not 
alter the posted numerical grade. 

Statutory Authority G.S. I30A-248. 

SUBCHAPTER 10F - HAZARDOUS WASTE 
MANAGEMENT 

.0029 IDENTIFICATION AND LISTING OF 
HAZARDOUS WASTES - PART 261 

(e) The "Lists of Hazardous Wastes" and the 
accompanying appendices (I through X) con- 
tained in 45 Fed. Reg. 33,122 to 33,137 (1980) [to 
be codified in 40 CFR 261.30 to 261.33 (Subpart 
D)| have been adopted by reference as amended 
by 45 Fed. Reg. 72,032 to 72,034, 74,890, 74,892, 
and 74,894 (1980); 46 Fed. Reg. 78,529, 78,537 
to 78,544, 4,614 to 4,620 (1981); 49 Fed. Reg. 
5,312, 19,923 (1984); and 50 Fed. Reg. 662, 665, 
2,000, and 28,744 (1985). Supplemental material 
contained m 45 Fed. Reg. 47,833 and 47,834 
(1980); 46 Fed. Reg. 35,247 to 35,249 (1981); and 
48 Fed. Reg. 14,294 and 15,256 to 15,258 (1983) 
have also been adopted by reference as amended 
by 50 Fed. Reg. 1999, 2001, 2002, and 2003, 
14,219, 42,942, and 42,943, and 53,319 (1985); 
and 51 Fed. Reg. 2,702, 6,541, 6,542, 5,330, 
10,175, 19,322, 28,297 to 28,309, 28,310, 28,682, 
and 33,612 (1986); and 52 Fed. Reg. 21.306 
0987}_ 

Statutory Authority G.S. 130A-294(c). 

.0032 STANDARDS FOR OWNERS/ 

OPERATORS OF HWMF'S - PART 264 

(b) The general provisions contained in 45 Fed. 
Reg. 33,221 and 33,222 (1980) (to be codified in 
40 CFR 264.1 to 264.4 (Subpart A)] have been 
adopted bv reference as amended by 45 Fed. Reg. 
76,075, 76,081, and 76,630 (1980); 47 Fed. Reg. 
8,306 and 32,384 (1982); 48 Fed. Reg. 2,511 and 
14,294 (1983); 50 Fed. Reg. 665 and 28,746 
(1985); and 52 Fed. Reg. 21,016 (1987). 



(c) "General Facility Standards" contained in 

45 Fed. Reg. 33,222 to 33,224 (1980) [to be cod- 
ified in 40 CFR 264.10 to 264.18 (Subpart B)[ 
have been adopted by reference as amended by 

46 Fed. Reg. 2,848, 2,849, 2,874, and 7,678 
(1981); 47 Fed. Reg. 32,349 and 32,350 (1982); 
48 Fed. Reg. 14,294 (1983); 50 Fed. Reg. 18,374 
and 28,746 (1985); a*4 51 Fed. Reg. 25,472 and 
40,637 (1986); and 52 Fed. Reg. 21,016 (1987). 

(f) The provisions for "Manifest System, 
Recordkeeping, and Reporting" and accompa- 
nying appendices contained in 45 Fed. Reg. 
33,226 to 33,232 (1980) [to be codified in 40 CFR 
264.70 to 264.78 (Subpart E)] have been adopted 
by reference as amended by 45 Fed. Reg. 86,970 
and 86,974 (1980); 46 Fed. Reg. 2,849 and 7,678 
(1981); 47 Fed. Reg. 32,350 (1982); 48 Fed. Reg. 
3,982 (1983); and 50 Fed. Reg. 18,374 and 28,746 
(198.5); a«4 51 Fed. Reg. 25,472 and 40,637 
(1986); and 52 Fed_ Reg. 21,016 (1987). 

Statutory Authority G.S. 130A-294(c). 

.0033 INTERIM STATUS STANDARDS 
FOR HWMF'S - PART 265 

(a) The general provisions contained in 45 Fed. 
Reg. 33,233 and 33,234 (1980) [to be codified in 
40 CFR 265.1 to 265.4 (Subpart A)| have been 
adopted by reference as amended by 45 Fed. Reg. 
76,075, 76,630, and 76,081 (1980); 47 Fed. Reg. 
8,306 (1982); 48 Fed. Reg. 2,511, 14,295, and 
52,720 (1983); 49 Fed. Reg. 46,095 (1984); a«4 
50 Fed. Reg. 666, 2005, a*** 28,749, 49,203, and 
49.204 ( 1985); and 52 Fed. Reg. 21,016 (1987). 

Statutory Authority G.S. l30A-294(c). 

.0034 INTERIM STATUS STANDARDS 
FOR PERMITTING - PART 270 

(b) The following provisions for additional 
permitting requirements contained in 48 Fed. 
Reg. 14,233 to 14,241 and 30,114 (1983) [to be 
codified in 40 CFR 270 (Subpart B, Permit 
Application)] have been adopted by reference as 
amended by 48 Fed. Reg. 39,622 (1983); 50 Fed. 
Reg. 2006, 28,751 and 28,752 (1985); a«4 51 Fed. 
Reg. 10,176, 16,458, 25,486, 29,431, and 40,653 
(1986); and 52 Fed. Reg. 23.450 (1987). 

Statutory Authority G.S. 130A-294(c); 
130A-295(a) (1) and (2). 

.0035 PERMITTING PROCEDURES - PART 124 

The following decision-making requirements for 
permits contained in 45 Fed. Reg. 33,485 to 
33,493 (1980) [to be codified in 40 CFR 124 
(Subpart A)[ have been adopted by reference as 
amended by 46 Fed. Reg. 36,706 (1981); 48 Fed. 



NORTH CAROLINA REGISTER 



436 



PROPOSED RULES 



Res. 30.115 and 39,620 (1983); and 49 Fed. Reg. 
17,718 and 17,719(1984). 
(6| 40 CTR 124.7, Statement of Basis; 

^¥j± 40 CFR 124S ' l "' act Sheet ; 

(8) 4(1 Cl'R 124.9, Administrative Record for 
Draft Permits When FPA is the Permitting 
Authority. 

(4K9) 40 CFR 124.10, Public Notice Of Permit 
Actions and Public Comment Period; 

P>4(10) 40 CFR 124. 1 1, Public Comments And 
Requests For Public Hearings; 

<-a+<J_n 40 CFR 124.12, Public Hearings; 

(44H12) 40 CFR 124.13, obhgation to raise is- 
sues and provide information during the 
public comment period: 

(444(13) 40 CFR 124.14, reopening of the 
public comment period; 

(4J4 ( 14) 40 CFR 124.15, issuance and effective 
date of permit; 

(44K 1 5) 40 CFR 124.16, stay of contested 
permit conditions; 

(444(16) 40 CFR 124.17, response to com- 
ments; 

(17) 40 CFR 124. IS. Administrative Record for 
Final Permit When 1 PA is the Permitting 
Authority; 



8} 40 CFR 124.19, Appeal of RCRA. UIC 
and PSD Permits; and 
44h 19) 40 CI R 124.20 Computation of Time. 

Statutory Authority G.S. l30A-294(c). 

.0039 RECYCLABLE MATERIALS - PART 266 

(a) The following provisions for recyclable 
materials used in a manner constituting disposal 
contained in 50 Fed. Reg. 666 (1985) [to be cod- 
ified m 40 CFR 266.20 to 266.23 (Subpart Q] 
have been adopted bv reference as amended bv 
50 Fed. Reg. 28,750 "(1985); and 52 Feci Reg. 
21.307 (1987). 

Statutory Authority G.S. 130A-294(c). 

.0042 LAND DISPOSAL RESTRICTIONS 
- PART 268 

(a) The "General" provisions contained in 51 
Fed. Reg. 40.638 to 40.641 (1986) [to be codified 
in 40 CFR 268.1 to 268.7 (Subpart A)] have been 
adopted by reference as amended bv 52 Fed. Reg. 
20.016 and 20.017 (198"). 

(b) The "Prohibitions on Land Disposal" pro- 
visions contained in 51 Fed. Reg. 40.641 to 
40,642 (1986) [to be codified in 40~CFR 268.30 
to 268.31 (Subpart C)[ have been adopted by 
reference as amended bv 52 Fed. Reg 20.017 
(1987), 

(c) The "Treatment Standards" provisions con- 
tained in 51 Fed. Reg. 40.642 (1986) [to be codi- 



fied in 40 CFR 268.40 to 268.44 (Subpart D)] 
have been adopted by reference as amended by 
52 Fed. Reg. 20,017(1987). 

(d) The "Prohibitions on Storage" provisions 
contained in 51 Fed. Reg. 40,642 and 40,643 
(1986) [to be codified in 40 CFR 268.50 (Subpart 
F)[ have been adopted by reference as amended 
by 52 Fed. Reg. 20.017 and 20,018 (1987). 

(e) Appendices I and II contained in 51 Fed. 
Reg. 40,643 to 40,653 ( 19S6) have been adopted 
bv reference as amended bv 52 Fed. Reg. 20.018 
(1987). 

Statutory Authority G.S. B0A-294(c). 

SUBCHAPTER 10G - SOLID WASTE 
MANAGEMENT 

SECTION .0100 - GENERAL PROVISIONS 

.0101 DEFINITIONS 

(37) "Solid waste collector" means any person 
who collects or transports solid waste by 
whatever means, including but not limited 
to, highway rail, and navigable waterway 

Statutory Authority G.S. 130.4-294. 

.0103 GENERAL CONDITIONS 

(d) Solid waste shall be disposed of at a solid 
waste disposal site in accordance with- the Solid 
Waste Management Act and the Federal Act. 
Hazardous waste, liquid waste, infectious waste, 
and any other wastes that may pose a threat to 
the environment or the public health, as deter- 
mined by the division, are prohibited from dis- 
posal at a solid waste disposal site, oxcopt: 

(4) Hazardous waste which is authorized 
pursuant to R*4* .0505(17) e£ t&9 Sub- 
chapter, otherwise alt other hazardous 
waste shall b# dispos e d ef a* a hazardous 
wast e facility which is permitted *€>• receive 
the specific hazardous waste; a«4 
f4) Liquid waste which is authoriz e d pursuant 

to R-«+e .0505(17) e£ 44s Subchapter. 
(4) Infectious waste 4*a+ h*s been treated a*4 
rendered non infectious » accordanc e 
w+4> R«k> 4405 e£ &» Subchapter. 
(4) Other waste ? which is authorized pursuant 
to- .0505. 
When the division determines a waste may pose 
a threat to the environment or public health, it 
will notify the solid waste disposal site operator 
and the person disposing of the waste to termi- 
nate the activity. The division mav require re- 
m<'\ ,il of the w a Me lor treatment and ->r d^povil 
in an approved manner. 



43: 



SORTH CAROLINA REGISTER 



PROPOSED RULES 



(e) The division has developed a "Procedure 
and Criteria for Waste Determination" which is 
used to determine whether a waste is: 

(1) hazardous as defined by 10 N.C.A.C. 10F, 
and 

(2) suitable for disposal at a solid waste man- 
agement facility. 

Information required for evaluation includes the 
identity of the generator, identity of the waste 
and how it was generated, and laboratory results 
indicating the chemical constituency of the waste. 
Copies of "Procedure and Criteria for Waste 
Determination" may be obtained from and in- 



12 



ected at the Solid and Hazardous Waste Man- 



agement Brandy Division of Health Services, 



P.O. Box 2091, Raleigh, N.C. 27602. The waste 
determination procedure shall be used for: 

(A) Waste which is generated outside the 
population and geographic area which the 
solid waste management facility is per- 



mitted to serve under .0504(1 )(g). 

(B) Waste from a transfer facility other than 
a facility permitted under these Rules. 

(C) Waste generated by a new generator in- 
side the population and geographic area 
which the Solid Waste Management Fa- 
cility is permitted to serve if the compo- 
nents of the waste cannot be readily 
determined otherwise. 



(D) Waste generated through a change in 
industrial process by an existing generator, 
provided the components of the waste 
cannot be readily determined otherwise. 

(E) A load of waste which a sanitary landfill 
operator suspects may contain materials 
which the facility is not permitted to re- 
ceive. 

(F) Requests bv a generator interested in 
transporting waste to an identified solid 
waste management facility for treatment 
and processing, transfer or disposal. 

(G) All sludges except sludge from water 
treatment plants. 

(H) Other wastes deemed appropriate bv the 
division for testing before transporting to 
a solid waste management facility. 

Statutory Authority G.S. 130A-294. 

.0104 SOLID WASTE STORAGE 

(jQ All solid waste shall be stored in such a 
manner as to prevent the creation of a nuisance, 
insanitary conditions, or a potential public health 
hazard. 

Statutory Authority G.S. I30A-294. 

0105 COLLECTION AND TRANSPORTATION 



OF SOLID WASTE 

(c) Vehicles or containers used for the col- 
lection and transportation bv whatever means, 
including but not limited to, highway, rail, and 
navigable waterway, of garbage, or refuse con- 
taining garbage, shall be covered, leakproof, du- 
rable, and of easily cleanable construction. 
These shall be cleaned as often as necessary to 
prevent a nuisance or insect breeding and shall 
be maintained in good repair. 

(d) Vehicles or containers used for the col- 
lection and transportation of any solid waste shall 
be loaded and moved in such a manner that the 
contents will not fall, leak, or spill and shall be 
covered when necessary to keep contents dry and 
to prevent blowing of material. If spillage should 
occur, the material shall be picked up imme- 
diately by the solid waste collector and returned 
to the vehicle or container and the area shall be 
properly cleaned. 

Statutory Authority G.S. I30A-294. 

.0107 TREATMENT OF INFECTIOUS WASTES 
PRIOR TO DISPOSAL IN SANITARY 
LANDFILLS 

(a) The following are approved methods of 
treatment of infectious wastes prior to disposal 
in a sanitary landfill: 

f4) Sharpo - mutilation &f incineration. 

Statutory Authority G.S. I30A-294. 

.0108 OLT-OF-STATE WASTE IN 
SANITARY LANDFILLS 

(a) No permit shall be granted for the disposal 
of nonradioactive solid waste generated outside 
the boundaries of North Carolina unless the fol- 
lowing conditions are met: 

(1) The source (i.e., all generators) of the 
waste is disclosed, as required by 
■0504(g)(ii). 

(2) Each load of waste has been inspected by 
the Solid Waste Regulatory Agency of the 
nation, state or territory where the waste 
was generated, and the agency has pro- 
vided: 

(A) a detailed listing of characteristics of all 
of the waste in the load, and 

(B) certification that the waste is 
noninjurious to human health and safety. 

(b) Existing permitted landfills will require a 
new permit, in accordance with .0504(g)(i) and 
(ii), before acceptance of waste generated outside 
the boundaries of North Carolina. 

Statutory Authority G.S. I30A-294. 



NOR TH CA R OLINA R EG IS TER 



438 



PROPOSED RULES 



SECTION .0200 - PERMITS FOR SOLID WASTE 
MANAGEMENT FACILITIES 

.0201 PERMIT REQUIRED 

(c) AH solid waoto management facilities shall 
bt* operated m conformity wrtk thos e Rulos as4 
h* such a manner as te prev e nt tfee creation ef a 
nuisanc e , insanitary conditions, &f potontial 
puhLic health hazard. A new permit or an 
amendment to an existing permit, shall be issued 
for a period not to exceed five years from the date 
of issuance. A permit may be issued for a shorter 
period based on consideration of changing tech- 
nology and compliance with Rules in effect at the 
time of review. A permit issued pnor to the ef- 
fective date of this Rule shall be reviewed every 
five years and modified, where necessary, in ac- 
corda nce with Rules in effect at the time of re- 
view. 



(d) All solid waste management facilities shall 
be operated in conformity with these Rules and 
in such a manner as to prevent the creation of a 
nuisance, insanitary conditions, or potential 
public health hazard. 

Statutory Authority G.S. 130A-294. 

.0202 PERMIT APPLICATION 

(a) Application for permits required by Rule 
.0201 of this Subchapter should be forwarded to 
the Solid and Hazardous Waste Branch, Division 
of Health Services, P. O. Box 2091, Raleigh, N. 
C. 27602. Permit applications shall contain the 
following information: 

(3) Detailed plans and specifications for solid 
waste management facilities (except dem- 
olition landfills) shall be prepared by a 
professional engineer. The plans shall 
bear an imprint of the registration seal of 
the engineer; and the geological study 
shall bear the seal of a licensed profes- 
sional geologist, in accordance with 
N.C.G.S. Chapter S9E. 

Statutory Authority G.S. 130A-294. 

.0203 PERMIT APPROVAL OR DENIAL 

(f) Appeals of permit decisions shall be in ac- 
cordance with Article 3 of N.C.G.S., Chapter 
150B. and the Rules adopted thereunder. A pe- 
tition appealing a permit decision must be filed 
within 30 davs of issuance of the decision. 



DUMPS 

A person operating or having operated an open 
dump for disposal of solid waste or a person who 
owns land on which such an open dump is or 
has been operating shall immediately eonvort te 
a sanitary landfill »f close the site in accordance 
with the following requirements: 

(1) Implement effective rat vector control, in- 
cluding baiting for at least two weeks after 
closing, to prevent rat- vector migration to 
adjacent properties; 

(2) If the site is deemed suitable by the division, 
compact and cover existing solid waste in 
place with two feet or more of suitable 
compacted earth; a condition of closing the 
site by compacting and covering the waste 
in place shall be recordation of the waste 
disposal location by the property owner with 
the Register of Deeds in the county where 
the land lies. Copies of the recordation 
procedure may be obtained from and in- 
spected at the Solid and Hazardous Waste 
Management Branch, Division of Health 
Services, P.O. Box 2091, Raleigh, N.C. 



Statutory Authority G.S. I30A-294. 

SECTION .0500 - DISPOSAL SITES 
.0502 NON-CONFORMING SITES/OPEN 



27602. 

(3) If the site is deemed unsuitable by the divi- 
sion, remove and place solid waste in an 
approved disposal site or facility; 

(4) Implement erosion control measures by 
grading and seeding; and 

(5) Prevent unauthorized entry to the site by 
means of gates, chains, beams, fences, and 
other security measures, approved by the 
division and post signs indicating closure. 

Statutory Authority G.S. 130A-294. 

.0503 SITING AND DESIGN REQUIREMENTS 
FOR DISPOSAL SITES 

(2) A site shall meet the following design re- 
quirements: 
(d) A site shall meet the following ground 
water requirements: 
(i) A site shall not contravene groundwater 
standards as established under 15 NCAC 
2L. as amended through January 4-r 19S5. 
15 NCAC 2L is adopted by reference in 
accordance with Subsection "c" of 
N.C.G.S. 150B-14. Copies of 15 NCAC 
2L may be obtained from and inspected 
at the Solid & Hazardous Waste Manage- 
ment Branch, Division of Health Services, 
P.O. Box 2091, Raleigh, N.C, 27602. 

Statutory Authority G.S. J 30.4-294. 

.0504 APPLICATION REQUIREMENTS FOR 
SANITARY LANDFILLS 



439 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



This Rule contains the information required for 
a permit application for each sanitary landfill. It 
is recommended that the site application be sub- 
mitted and acted upon prior to submitting the 
application for the construction plan. A mini- 
mum of four sets of plans will be required in each 
application. Note that a permit for a sanitary 
landfdl is based upon a particular stream of 
identified waste, as set forth in .0504(g)(i) and 
(ii), below. Any substantial change in the pop- 
ulation or area to be served, or in the type, 
quantity or source of waste will require a new 
permit and operation plan, including waste de- 
termination procedures where appropriate. 
(1) The following information is required for 
reviewing a site plan application for a pro- 
posed sanitary landfill: 
(e) Aft approval letter from the wwt ef looaJ 
government having zoning authority over 
the afea wher e the site is te- be located. 
I ocal government approvals: 
(il Jf the site is located within an incorpo- 
rated city or town, or within the extra- 
territorial jurisdiction of an incorporated 
city or town, the approval of the govern- 
ing board of the city or town shall be re- 
quired. Otherwise, the approval of the 
Board of Commissioners of the county in 
which the site is located shall be required. 
Approval may be in the form of either a 
resolution or a vote on a motion. A copy 
of the resolution, or the minutes of the 
meeting where the vote was taken, shall 



(a) A site shall only accept those solid wastes 
which it is permitted to receive. The 
landfill operator shall notify the division 
of attempted disposal of any waste the 
landfill is not permitted to receive, in- 
cluding waste from outside the population 
and area the landfill is permitted to serve. 

(b) No hazardous, liquid, or infectious waste 
shall be accepted or disposed of in a sani- 
tary landfill, except as may be approved 
by the division. 

(e) All sharps, whether broken or unbroken, 
shall be placed in a sealed, puncture-proof 
container prior to disposal, unless they 
have first been incinerated. 

(f) Wastewater treatment sludges shall be used 
as a soil conditioner and incorporated into 

Sludges shall 



the final two feet of cover. 



be examined for acceptance by Waste 
Determination procedures in Rule 

.0103(e). 

Statutory Authority G.S. 130A-294. 

.0510 CLOSURE CONDITIONS 

(c) When a solid waste disposal site has been 
closed in accordance with the requirements of the 
division, future necessary maintenance and water 
quality monitoring shall be the responsibility of 
the owner and/or the operator and will be speci- 
fied in the closure letter. 



bFfo7^ardW~to"D.vTslon"^f Health "SeT^ Statutory A uthority G.S. BOA -294. 



vices. 
(ii) A letter from the unit of local govern- 



ment having zoning jurisdiction over the 
site which states that the proposal meets 
all of the requirements of the local zoning 
ordinance. 

Statutory! Authority G.S. 130A-294. 

.0505 OPERATIONAL REQUIREMENTS 
FOR SANITARY LANDFILLS 

Any person who maintains or operates a sani- 
tary landfill site shall maintain and operate the 
site in conformance with the following practices, 
unless otherwise specified in the permit: 
(6) Vegetation Requirements 
(a) Within six months after final termination 
of disposal operations at the site e» or a 
major part thereof or upon revocation of 
a permit, the area shall be stabilized with 
native grasses. Once the vegetation is es- 
tablished, h shall not be disturbed. 
(11) Waste Acceptance and Disposal Require- 
ments 



SECTION .0700 - ADMINISTRATIVE PENALTY 
PROCEDURES 

.0704 PAYMENTS: HEARING 

(a) Within 30 60 days after receipt of notifica- 
tion of a penalty assessment, the respondent 
must tender payment, submit » writing a pay- 
ment must be tendered unless a written request 
for an administrative hearing has been filed pur- 
suant to G.S. 130A-22. All app e als written re- 
quests shall be made in accordance with G.S. 
150Band 10 NCAC IB. 

Statutory Authority G.S. l30A-22(f); 130A-24; 
130A-294(a) and (c). 

CHAPTER 12 - HEALTH: OFFICE OF LOCAL 
SERVICES 

SECTION .0200 - STANDARDS FOR LOCAL 
HEALTH DEPARTMENTS 

.0239 FOOD: LODGING: AND 

INSTITUTIONAL SANITATION 



NORTH CAROLINA REGISTER 



440 



PROPOSED RULES 



(a) A local health department shall provide 
food, lodging, and institutional sanitation services 
within the jurisdiction of the local health depart- 
ment. A local health department shall establish, 
implement, and maintain written policies which 
shall include: 

(1) The frequency of inspections of food, 
lodging, and institutional facilities with the 
following being the minimum: 



Type of Establishment 
Bed and breakfast homes 
Child day-care facilities 
Education food service 
Institutions 
Local confinement 

facilities 
Lodging 
Mass gatherings 
Meat markets 
Migrant housing 
Mobile food umts 
Private boarding schools 

and colleges 
Pushcarts 
Residential care 

facilities 
Restaurants 
Restaurants, meat 

markets or summer 

camps which are closed 

for a period of 60 

days or more 
School lunchrooms 
Schools 

Summer camps 
Temporary restaurants, 

food stands, or 

drink stands 
Vending machine 

locations 



Frequency 

1 year 
1/year 
3/ year 
2,'year 

1/year 
2, year 

2 gathering 
4/year 
2/year 
4/year 

3L year 

4/year 

1/year 
4/year 
1 '3 months 
of 

operation 
(or part 
thereof) 

3 year 
1 'year 
1 year 



1 two weeks 
Represen- 
tative 
number of 
locations 
year 



For the purpose of restaurant inspections, a 
food sampling inspection shall fulfill the re- 
quirement of an inspection provided a min- 
imum of three distinct samples are taken 
from the restaurant. A maximum of one 
tood sampling inspection per restaurant, per 
vcar. mav be used to meet the quarterly in- 
spection requirement for restaurants. 

Statutory Authority G.S. 130A-9. 



Ivotice is hereby given in accordance with G.S. 
1 SOB- 12 that The Commission of Anatomy in- 
tends to adopt and amend regulations cited as 10 
NCAC 81 .0016 and .0017. 

1 he proposed effective date of this action is 
February 1, 1988. 

1 he public hearing will be conducted at 1:00 
p.m. on November 19, 1987 at Cooper Memorial 
Health Building, Sixth Floor Board Room, 225 
N. McDowell Street, Raleigh, North Carolina. 

(^ omment Procedures: Any person may request 
information or copies of the proposed rules by 
writing or calling John P. Barkley, Agency Legal 
Specialist, Division of Health Services, P. O. Box 
2091, Raleigh, North Carolina 27602-2091, (919) 
733-3131 . Written comments on these subjects 
may be sent to Mr. Barkley at the above address. 
H 'ritten and oral (for no more than ten minutes) 
comments on these subjects may be presented at 
the hearing. Notice should be given to Mr. 
Barkley at least three days prior to the hearing if 
you desire to speak. 

CHAPTER 8 - HEALTH: PERSONAL HEALTH 

SUBCHAPTER 81 - COMMISSION OF 
ANATOMY 

.0016 FORMS 

(b) Forms currently used by the commission 
are as follows: 

(61 DHS Form 3468 - Bequeathal of Skele- 
ton or Skeletal Remains for Studies in 
Forensic .Anthropology. This form is a 
testamentary' device whereby a person 
leaves his or her body after death for use 
in an osteological collection for the study 
of forensic anthropology. 

(71 DHS Form 3469 - Donation of Skeleton 
or Skeletal Remains for Studies in 
Forensic Anthropology. This form is ex- 
ecuted by the relative or person with au- 
thority to dispose of the deceased's bodv 
and donates the body for use in an 
osteological collection for the study of 



forensic anthropology. 



Statutory Authority G.S. 
130A-416; 143B-204. 



130A-405; 130A-415; 



.0017 FORENSIC ANTHROPOLOGY 
STL DIES 

(a) For the purposes of this Subchapter, 
"Forensic .Anthropology Program" means a uni- 



441 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



versity program in a field of study using 
anthropological techniques of osteological (bone) 
analysis to assist in the identification of a crime 
victim, a victim of a mass disaster, or a body that 
is unidentifiable by standard methods of identifi- 
cation. 

(b) The Commission of Anatomy may distrib- 
ute a body to a forensic anthropology program 
if the conditions in Paragraphs (c) and (d) have 
been met and the body falls under one of the 
following categories: 

(1) the body is an unclaimed body that has 
been offered to and rejected by the four 
medical schools in the state; or 

(2) the body has been bequeathed or donated 
to the Commission of Anatomy for 
forensic anthropology studies. 

(c) The chairman of the Commission of Anat- 
omy, or his or her delegate, shall do the following 
before distributing a body to a forensic 
anthropology program: 

(1) determine that a body is suitable for 
forensic anthropology studies; 

(2) direct the person, institution or agency 
having control of the body to hold the 
body until it can be established that a 
forensic anthropology program will accept 
the body and pay all expenses for the re- 
moval, storage, transportation and prepa- 
ration of the body; 

(3) notify the person, institution or agency 
having control of the body that the com- 
mission has accepted the body for a 
forensic anthropology program and that 
the forensic anthropology program will 
contact them concerning removal of the 
body; 

(4) Assign an identifying number to the body 
that shall be inscribed on the skeletonized 
remains kept by the forensic anthropology 
program; 

(5) notify the forensic anthropology program 
that a body has been accepted for distrib- 
ution to that program; 

(6) for unclaimed bodies, notify the county 
director of social services that the body 
has been accepted by the commission for 
a forensic anthropology program; and 

(7) keep a record of all transactions, including 
the name, sex, age, and date of death of 
the deceased, who has custody of the 
body, where the body is being stored, and 
when custody of the body will be trans- 
ferred to the forensic anthropology pro- 
gram. 

(d) After the director of a forensic 
anthropology program, or his or her delegate, 
agrees to accept a body that has been approved 



by the commission for distribution to that pro- 
gram, the director shall do the following: 

(1) for unclaimed bodies, assume custody of 
the body after the ten-day waiting period 
required by G.S. 130A-415; 

(2) arrange transportation for the body to the 
forensic anthropology program in a 
leakproof, airtight container at least 
equivalent to a Ziegler case; 

(3) attach a document to the body container 
that clearly states where the body is being 
transported to, that the body is being 
transported to a forensic anthropology 
program, that during transportation the 
body is under the jurisdiction of the 
Commission of Anatomy, and that the 
Chairman of the Commission of Anat- 
omy, or his or her delegate, should be 
contacted at (919) 966-1134 or 966-4131 
if any problems arise during transporta- 
tion; 

(4) keep records of the dates of transportation 
of the body and the names of the trans- 
porters; 

(5) obtain all necessary documents, to be 
maintained in a permanent record, in- 
cluding but not limited to the notification 
of death, the death certificate, the burial 
transit permit, and copies of the 
bequeathal or donation forms; 

(6) provide a quarterly report to the Chairman 
of the Commission of Anatomy contain- 
ing the name, sex, age, and date of death 
of the deceased and the identifying num- 
ber assigned to the skeletal remains by the 
commission for all bodies received by the 
program; and 

(7) follow all other applicable Rules in this 
Subchapter. 

(e) Forensic Anthropology programs shall pay 
any costs incurred for storage of a body for a 
forensic anthropology program that the program 
later refuses to accept. 

(f) Skeletal remains of bodies obtained from the 
commission may not be sold. If skeletal remains 
reach a point where they are no longer useful, 
they will be cremated and buried. Skeletal or 
cremated remains of bodies obtained from the 
commission may not be reclaimed by or returned 
to relatives or other interested parties. 

Statutory Authority G.S. 130A-405; 130A-415; 
BOA-416: 143B-204. 



Ivotice is hereby given in accordance with G.S. 
1 SOB- 12 that The Division of Mental Health, 
Mental Retardation and Substance Abuse Services 



NORTH CAROLINA REGISTER 



442 



PROPOSED RULES 



intends to amend regulations cited as 10 NCAC 
I4C .1117; 181 .0120. 

1 he proposed effective date of this action is 
March 1, 1988. 

1 he public hearing will be conducted at 11:00 
a.m. on December 3, 1987 at Black Mountain 
Center, (Mental Retardation Center), Old High- 
way 70, Black Mountain, NC 28711. 



Cc 



omment Procedures: Any interested person 
may present his/her views and comments by oral 
presentation at the hearing or by submitting a 
written statement. Persons wishing to make oral 
presentations should contact: Jan Warren, A. P. A. 
Coordinator, Division of Mental Health, Mental 
Retardation and Substance Abuse Services, 325 
North Salisbury St., Raleigh, North Carolina 
27611, (919) 733-797/ by November 15, 1987. 
The hearing record will remain open for written 
comments for 30 days from October 15, 1987 
through November 15. 1987. Written comments 
must be sent to the A. P. A. Coordinator at the 
address specified above by November 15, 1987 
and must state the proposed tide or rules to which 
the comments are addressed. Fiscal information 
is also available upon request from the same ad- 
dress. 

CHAPTER 14 - MENTAL HEALTH: GENERAL 

SUBCHAPTER 14C - GENERAL RULES 

SECTION .1 100 - STATE AND FEDERAL 
FUNDS ADMINISTERED 

.1117 GRANT-IN-AID FOR ADULT 
DEVELOPMENTAL ACTIVITY 
PROGRAMS 

(b) Such grant-in-aid funds shall be used to 
support clients who are: 

(1) substantially mentally retarded or severely 
physically disabled persons as defined in 
10 NCAC 181 .0120 &ty a»d {Wf except 
that clients with a primary diagnosis of 
other than substantial mental retardation 
or severe physical disability may be eligi- 
ble for funding provided: 



Statutory Authority 
122C-131; 122C-141. 



G.S. !22C-lI2(a)(6); 



SECTION .0100 - PURPOSE: SCOPE: 
APPLICABILITY AND DEFINITIONS 

.0120 DEFINITIONS 

(94) "Substantially Mentally Retarded Person" 
means for the purpose of ADAP a person 
who is mentally retarded to the degree of 
seriously limiting his functional capabilities, 
whose habilitation or rehabilitation can be 
expected to extend over a period of time, 
and including: 

(a) moderately mentally retarded persons; 

(b) severely mentally retarded persons; 

(c) profoundly mentally retarded persons; or 

(d) mentally retarded persons who a» found 
by to^ Division ef Vocational Rehab ili 
tation Services to be ineligible - fef tot** 
agency's servioos d«e to with a 
handicapping condition so severe as to 
lack the potential for gainful occupation 
employment at this time, either in a shel- 
tered or competitive setting. In addition, 
such individuals must have a deficit in 
self-help, communication, socialization or 
occupational skills and be recommended 
by the vocational rehabilitation counselor 
for consideration of placement m an 
ADAP. 

Statutory Authority G.S. 143B-147. 



i V otice is hereby given in accordance with G.S. 
150B-12 that The Division of Medical Assistance 
intends to amend regulations cited as 10 NCAC 
2611 .0102; .0105: .0302; .0303. 

1 he proposed effective date of this action is 
March I, 1988. 

1 he public hearing will be conducted at 1:30 
p.m. on November 16, 1987 at North Carolina 
Division of Medical Assistance, 1985 Umstead 
Drive, Room 201, Raleigh, North Carolina 27603. 



Co 



CHAPTER 18 - MENTAL HEALTH: OTHER 
PROGRAMS 



■omment Procedures: Written comments con- 
cerning this amendment must be submitted by 
November 16, 1987 to: Director, Division of 
Medical Assistance, 1985 Umstead Drive, 
Raleigh, N.C. 27603. Oral comments may be 
presented at the hearing. In addition, a fiscal 
impact statement on each of these proposed rules 
is available upon written request from the same 
address. 



SUBCHAPTER 181 -GENERAL 
REQUIREMENTS 



CHAPTER 26 - MEDICAL SERVICES 
SUBCHAPTER 26H - REIMBURSEMENT PLANS 



443 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



SECTION .0100 - REIMBURSEMENT FOR 

SKILLED NURSING FACILITY AND 

INTERMEDIATE CARE FACILITY SERVICES 

.0102 RATE SETTING METHODS 

(e) Each out-of-state provider is reimbursed at 
the lower of the appropriate North Carolina 
maximum rate or the provider's payment rate as 
established by the state in which the provider is 
located. For patients with special needs who 
must be placed in specialized out-of-state facili- 
ties, a payment rate that exceeds the North 
Carolina maximum rate may be negotiated. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 
S.L. 1985, c. 479, s. 86; 42 CFR 447 Subpart C. 

.0105 RETURN ON EQUITY 

(b) The rate of return shall be 1 1.875 porcont. 
equal the lower of 1 1.875 percent or the interest 
rate for the return on equity paid to Skilled 
Nursing Facilities by the Medicare Program for 
the appropriate cost reporting period. 

Authority G.S. 108A-25(b); I08A-54; 108A-55; 
S.L. 1985, c. 479, s. 86; 42 CFR 447, Subpart C. 

SECTION .0300 - ICF-MR PROSPECTIVE RATE 
PLAN 

.0302 ALLOWABLE COST FINDING: 

REPORTING AND VERIFICATION 

(e) Providers, with the prior approval of the 
Division of Medical Assistance, may file joint or 
combined cost reports for multiple facilities if 
those facilities are under common ownership or 
control, operate as a reasonably coherent unit 
(e.g., share staff or other resources), share a 
common management and accounting structure 
(e.g., single home office), and are in reasonably 
close geographic proximity. The Division of 
Medical Assistance shall assign a single common 
per diem rate to aH the facilities in each group 
that files a single combined cost report. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 
S.L. 1985, c. 479, s. 86; 42 CFR 447, Subpart C. 

.0303 METHODS AND STANDARDS 
FOR DETERMINING RATES 

(c) The base year per diem rate for each pro- 
vider will be inflated from the base year to the 
year in which the rate will apply using inflation 
factors for each intervening year computed as 
follows: 

(2) Inflation rates for each category will be 
established using official estimates of in- 
flation provided by the North Carolina 



Office of Budget and Management for the 

year in which the rate shall apply. 
(C) Capital cost shall not be inflated. The 

annual capital 6©st ©f lease e xpense shall 

be limited to the sw» ©f (e) (5) f©} (i) a»4 

(ii) as follows: 
($ The annual depreciation ©» plant 
a»4 equipment that would be com 
putod ©» assets e qual to twenty five 
thousand dollars ($25,000) pep bed- 
during the fiscal year 1982 83 adjusted 
fop changes » tfte Dodge Building Cost 
Indon ©f North Carolina cities fei e ach 
year since 1982 83. This amount is 
oomputod using the straight lino 
method ©f depreciation aa4 the useful 
hfo standards ootabliohod by the Amcri 
©a» Hospital Association. 

(it) Aft interest allowanco equal to 4-Q 
percent ©f the maximum aliowod his- 
tories! e©st used to compute toe as- 
praal depreciation ift (e) fS) (Tty fi) ©f 
this Piulo. 

fi*p) This capital/lease limit does Be* ap- 
ply to leases i» effect prior to August 
3_ 19g3 

(*¥) The State may waive tois capital 
/loaso limit toF group homes established 
pursuant to the provisions ©f Chapter 
&£& ©f the 1983 S e ssion laws provided 

t } \ ■ | 1 I r'i ■ | |"> i \f .liiii "v^ r i t^ ^^i ■ i i -* 1 • ^^^^^T^ i*^^^^^^^ 

homo dees ft©t exceed the pep diem ©£ 

111*- 11 IJI IIUI H.'H rTTTTTT fl ill t' 11 \^. I t r I 1 VTT W.TJ 3 

are transferred. 
(f) New providers are those that have not filed 
a cost report i» the base yeap covering at least one 
full year of normal operations. Theso providers 
shall havo a rate establish e d by tfte Division ©f 
Medical Assistance using budgetod data. This 

1 11 \\. IV I CT I 1 \. ~ * 1 UVI II! t mTCTTT I IV I tTttTTO 1 1 IV III l-TJ IT.II T 

rate toF aH e xisting facilities. A new provider 
shall have a negotiated rate based upon the pro- 
vider's proposed budget. This rate for a new fa- 
cilitv shall not exceed the maxntvini rale bein g 
allowed to existing facilities or any other limit 
estabhshed in state law. The rate shaU be rebased 
to the actual cost incurred in the first full year of 
normal operations in the first year after audited 
data for that first year of normal operations is 
completed. 

(h) Start-up costs are cost incurred by an 
ICF-MR provider while preparing to provide 
services. It includes the cost incurred by provid- 
ers to provide services at the level necessary to 
obtain certification less any revenue or grants re- 
lated to start-up. The North Carolina Medicaid 
Program will reimburse these start-up costs up 
to a maximum equal to the facility's rate times 



NORTH CAROLINA REGISTER 



444 



PROPOSED RULES 



its beds times 90 days. This reimbursement will 
be made in addition to the facility's per diem rate. 
The amount shall be payable upon receipt of a 
special start-up cost report. This report should 
be filed within 15 months of the certification 
date. No advance of start-up funds shall be made 
prior to the desk audit of the start-up cost report. 
(i) The annual capital cost or lease expense 
shall be limited to the sum of (_1_[ and (2) as fol- 
lows: 

( 1 ) The annual depreciation on plant and 
fixed equipment that would be computed 
on assets equal to thirty thousand dollars 
($30, 000) per bed during the fiscal year 
19S2-8 3 adjusted for changes in the Dodge 
Building Cost Index of North Carolina 



£2 

(4| 



■lnu'iim lj- cmruted u-ing the straight- 
line method of depreciation and the useful 
life standards established by the American 
Hospital Association. 
An interest allowance equal to ten percent 
of the maximum allowed historical cost 
used to compute the annual depreciation 
on plant and fixed equipment. 
This capital lease limit does not apply to 
leases in effect prior to August 3j [983. 
The limitation on capital costs shall not 
be applied to facilities with fewer than 21 
certified beds. 



Authority G.S. 108A-25(b); 108A-54; 108A-55; 
S.L. 1985, c. 479, s. 86: 42 C.F.R. Part 447, 
Subpart C. 

TITLE 15 - DEPARTMENT OF NATURAL 

RESOURCES AND COMMUNITY 

DEVELOPMENT 

1\ otice is hereby given in accordance with G.S. 
J SOB- J 2 that the Division of Coastal Management 
intends to amend regulation cited as 15 XCAC 7H 
.0506. 



Th 



he proposed effective date of this action is 
February 1. 1988. 



1 he public hearing will be conducted at 7:30 
p.m. on December 3. 198" at Cape Hatteras 
School, Buxton. XC. 

C_ omment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. The Coastal Resources Commission will 
receive written comments up to the date of the 
hearing. A ny persons desiring to present lengthy 
comments is requested to submit a written state- 



ment for inclusion in the record of proceedings at 
the public hearing. Additional information con- 
cerning the hearing or the proposals may be ob- 
tained by contacting: Portia Rochelle, Dhision of 
Coastal Management, P.O. Box 27687, Raleigh, 
SC 27611-7687. (919) 733-2293. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES FOR 
AREAS OF ENVIRONMENTAL CONCERN 

SECTION .0500 - NATURAL AND CULTURAL 
RESOURCE AREAS 



cities for each year since 1982-83. This rTTt 



0506 COASTAL COMPLEX NATURAL AREA 

(d) Designation. The Coastal Resources 



Commission hereby designates Buxton Woods 
as a coastal complex natural area of environ- 
mental concern. Buxton Woods is one of the 
largest remaining examples of a true maritime 
forest in the southeastern United States and the 
largest in North Carolina. The area is located 



on Hatteras Island, 



The area is 
45 miles south of Manteo. 



between the villages of Buxton and Frisco, and 
include: appro ximat eh' 2.500 acres of dense 
maritime forest and relict dune-swale system. 



Thes ■ topographical features, combined with 
historical land use patterns and geographic iso- 
lation have resulted in a unique island habitat 
containing unusual biotic diversity. Buxton 
Woods hosts a number of significantly rare plant 
and animal species, as well as outstanding eco- 
logical, geological, and cultural resources of state 
and national significance. Buxton Woods also 
serves as a recharge area for the onlv major 
source of freshwater on Hatteras Island, and the 
onlv aquifer capable of supplying the freshwater 
needs of the area. 

Development in the Buxton Woods AEC shall 
be consistent with the use standards set out in 
Paragraph (e) of this Rule: 

(e) Use Standards. Buxton Woods. 



(1 1 Permanent structures shall be permitted 
as follows: On lots platted on or before 
June 1 9S" 7 . no more than one commer- 
cial or residential unit shall be permitted 
per platted subdivision 1< .\_ development 
and associated clearing on such lots shall 
not exceed 35 percent of the total lot area. 
On lots subdivided or created and platted 
after June 4^ 1987, no more than one 
commercial or residential unit >hall be 
permitted per 80.000 sq uare feet of land 
area: development and associated clearing 
on such lots shall not exceed 35 percent 
of the total lot area. Tracts of land that 
exceed 160.000 square feet in land area 
may be developed at a density of one unit 



445 



SORTH CAROLINA REGISTER 



PROPOSED RULES 



per 40,000 square feet of land area so long 
as the development is clustered in such a 
way that the maximum amount of con- 
tinuous land area remains undisturbed and 
development and associated clearing does 
not exceed 20 percent of the total land 
area. 
(2) The clearing of land to provide access to 
building sites shall be minimized, includ- 
ing the clearing of the forest understory. 
Private access streets shall have a maxi- 
mum width of 40 feet including land 
cleared for shoulders and right-of-ways. 
All streets shall follow the natural con- 



tours of the land insofar as possible and 
shall not be constructed at angles perpen- 
dicular to the predominant northeast- 
southwest storm wind direction. Curbs 
and gutters shall not be installed. 



Ql 



lii 



Trees shall not be removed except as 
necessary for the safe construction of the 
structure, parking area, accessway, and 
septic system. To the extent possible, re- 
maining trees should be tied back to pro- 
tect them during construction. Native 
shrubs, plants, leaf litter, mulch, topsoil, 
and similar understory materials should 
remain undisturbed. Pedestrian walkways 
needed to gain access to buildings are al- 
lowed within the undisturbed area if de- 
signed so as to lease the overhead canopy 
unbroken. 

No structure, paved area, or any part of 
a ground absorption sewage disposal sys- 
tem shall be located within 50 feet of any 



marsh, stream, pond, or wetland swale. 
Roof lines shall not extend more than 35 



(5) Roof lines shall not 



feet above construction grade in order to 
protect the shape and profile of the forest 
ca nopy. 

The filling or dredging of marshes, 
streams, ponds, or wetland swales is pro- 



(6) The 



hibited. Minor road crossing fills for 
property access are allowed only as au- 



m 



thori/.ed under the Corps of Engineers 
nationwide penrut [33 CFR 330.5(a)( 14)|. 
The artificial lowering of the water table 
for purposes not associated with domestic 
or commercial uses of freshwater is pro- 
hibited. 



(8) Natural contours shall be maintained to 
the extent possible and shall be disturbed 
only as necessary for the structure, park- 
ing area, accesswav, and septic system. 
Building on pilings is recommended if the 
levelling of natural contours would other- 
wise be necessary for standard founda- 
tions. 



(9) Parking areas should be located under the 

structure where possible. 
(10) Septic systems and other utilities should 
be located, when possible, at the edges of 
areas cleared for access and building pur- 
poses. Alternative septic systems are 
available which can be effectively located 
within forested areas without excessive 
clearing, and are recommended. 

Statutory Authority G.S. I13A-107(a), b; 
113A-1 13(b) (4)e. 

Jyotice is hereby given in accordance with G.S. 
1 SOB- 1 2 that the Wildlife Resources Commission 
intends to repeal regulations cited as 15 NCAC 
10A .0201; .0204; .0209; .0301; .0302; 10B .0110; 
.0112; .0407; .0408; 10C .0101 - .0105; .0202; 
.0204; .0207; .0210; .0303; .0403; 10D .0001; 10F 
.0101; .0108; 10G .0101; .0104; .0105; .0201; 
.0204; .0205; .0301; .0304; .0305; .0306; 10H 
.0107; .0401; .0402; .0408; .0702; .0709; .0902; 
.1001. 



1 he proposed effective date of this 
March 1, 1988. 



action is 



1 he public hearing will be conducted at 10:00 
a.m. on November 18, 1987 at Room 386, 
Archdale Building, 512 N. Salisbury Street, 
Raleigh, NC. 

(^ omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. The record of hearing will be open for 
receipt of written comments from October 16, 
1987, to 5:00 p.m. on November 16, 1987. Such 
written comments must be delivered or mailed to 
the Wildlife Resources Commission, 5/2 N. 
Salisbury St., Raleigh, NC 27611. 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER 10A - WILDLIFE RESOURCES 
COMMISSION 

SECTION .0200 - ORGANIZATION AND 
PROCEDURE 

.0201 ACTION BY COMMISSION (REPEALED) 

Statutory Authority G.S. 143-243. 
.0204 COMMITTEES (REPEALED) 

Statutory Authority G.S. 75A-3; 143-243. 



NORTH CAROLINA REGISTER 



446 



PROPOSED RULES 



.0209 ENFORCEMENT JURISDICTION OF 
SPECIAL OFFICERS (REPEALED) 

Statutory Authority G.S. 113-134; 113-138; 
113-305. 

SECTION .0300 - ANNUAL REGULATIONS 
PROCEDURE 

.0301 NECESSITY FOR ANNUAL 

REGULATIONS (REPEALED) 

Statutory Authority G.S. 113-291.2; 113-291.7; 
113-301.1; 113-307; 143-239. 

.0302 POLICY CONSIDERATIONS 
(REPEALED) 

Statutory Authority G.S. 113-131; 113-/32; 
113-273; 113-291.2; 113-301.1. 

SUBCHAPTER 10B - HUNTING AND 
TRAPPING 

SECTION .0100 - GENERAL REGULATIONS 

.0110 IDENTIFICATION AND ATTENDANCE 
OF TRAPS (REPEALED) 

Statutory) Authority G.S. 113-134; 113-291.6. 

.0112 BEAVER (REPEALED) 

Statutory Authority G.S. 113-134; 113-291.1. 

SECTION .0400 - TAGGING FURS 

.0407 REVOCATION AND NONRENEWAL OF 
LICENSES (REPEALED) 

Statutory Authority G.S. 113-134; 113-276.2; 
113-276.3; 113-277. 

.0408 FOX DEALER PERMIT (REPEALED) 

Statutory Authority G.S. 113-134; 1/3-274; 
113-291.3; 113-291.4. 

SUBCHAPTER 10C - INLAND FISHING 
REGULATIONS 

SECTION .0100 -JURISDICTION OF 
AGENCIES: CLASSIFICATION OF WATERS 

.0101 SCOPE AND PURPOSE (REPEALED) 

Statutory Authority G.S. 113-132; 1/3-/34; 
1/3-136. 

.0102 INLAND FISHING WATERS (REPEALED) 



Statutory Authority G.S. 113-129; 113-132; 
113-134. 

.0103 COASTAL FISHING WATERS 
(REPEALED) 

Statutory Authority G.S. 113-129; 113-/32; 
113-134; 113-292. 

.0104 JOINT FISHING WATERS (REPEALED) 

Statutory Authority G.S. 113-132; 113-134; 
113-292. 

.0105 POSTING DIVIDING LINES 
(REPEALED) 

Statutory Authority G.S. 113-132; 113-134. 

SECTION .0200 - GENERAL REGULATIONS 

.0202 FISHING LICENSE REQUIREMENTS 
(REPEALED) 

Statutory Authority G.S. 113-132; 113-134. 

.0204 DRAINING IMPOUNDED PUBLIC 
WATERS (REPEALED) 

Statutory Authority G.S. 113-134; 113-274. 

.0207 GRABBLING FOR FISH (REPEALED) 

Statutory Authority G.S. 113-134; 113-292. 

.0210 FISH TAKEN ILLEGALLY OR FOR 
MANAGEMENT PURPOSES 
(REPEALED) 

Statutory Authority G.S. 113-134; 113-137. 

SECTION .0300 - GAME FISH 

.0303 PURCHASE AND SALE OF INLAND 
GAME FISH (REPEALED) 

Statutory Authority G.S. 113-134; 113-273; 
113-292; 113-302. 

SECTION .0400 - NONGAME FISH 

.0403 TAKING NONGAME FISH BY SPECIAL 
DEVICES (REPEALED) 

Statutory Authority G.S. 113-134; 113-272.3; 
113-276; 1/3-292. 

SUBCHAPTER 10D - GAME LANDS 
REGULATIONS 

.0001 DESIGNATION OF GAME LANDS 



447 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



(REPEALED) 

Statutory Authority G.S. 113-134; 113-264; 
113-291.2; 113-305; 113-306. 

SUBCHAPTER 10F - MOTORBOATS AND 
WATER SAFETY 

SECTION .0100 - MOTORBOAT 
REGISTRATION 

.0101 MOTORBOAT IDENTIFICATION 
(REPEALED) 

Statutory Authority G.S. 75A-3. 

.0108 RECIPROCITY (REPEALED) 

Statutory Authority G.S. 75A-3; 75A-5. 

SUBCHAPTER 10G - DISTRIBUTION AND SALE 

OF HUNTING: FISHING: AND TRAPPING 

LICENSE 

SECTION .0100 - LICENSE AGENTS 

.0101 APPOINTMENT OF LICENSE AGENTS 
(REPEALED) 

Statutory Authority G.S. 113-134; 113-270.1. 

.0104 LICENSE HANDLING PROCEDURE 
(REPEALED) 

Statutory Authority G.S. 113-134; 113-270.1; 
113-270.3; 113-275; 1/3-305. 

.0105 CREDIT FOR LICENSE LOSSES 
(REPEALED) 

Statutory Authority G.S. 113-134; 113-270.1. 

SECTION .0200 - BOAT REGISTRATION 
AGENTS 

.0201 APPOINTMENT OF AGENTS 
(REPEALED) 

Statutory Authority G.S. 75A-3; 75A-5. 

.0204 BOAT REGISTRATION PROCEDURE 

(REPEALED) 
.0205 CREDIT FOR VALIDATION DECALS 

LOST (REPEALED) 

Statutory Authority G.S. 75A-3; 75A-5. 

SECTION .0300 - FUR TAG AGENTS 

.0301 APPOINTMENT OF AGENTS 
(REPEALED) 



Statutory Authority G.S. 113-134; 113-273; 
113-276.1; 113-291.3; 113-305. 

.0304 FUR TAG DISTRIBUTION PROCEDURE 
(REPEALED) 

Statutory Authority G.S. 113-134; 113-273; 
113-276.1. 

.0305 CREDIT FOR FUR TAG LOSSES 

(REPEALED) 
.0306 TERMINATION OF AGENCY 

(REPEALED) 

Statutory Authority G.S. 113-134; 113-273; 
1 13-276.1; 113-291.3. 

SUBCHAPTER 10H - REGULATED ACTIVITIES 

SECTION .0100 - CONTROLLED SHOOTING 
PRESERVES 

.0107 REVOCATION OF LICENSE TO 
OPERATE (REPEALED) 

Statutory Authority G.S. 1/3-134; 113-273; 
113-276.2. 

SECTION .0400 - COMMERCIAL TROUT 
PONDS 

.0401 LICENSE REQUIRED (REPEALED) 
.0402 APPLICATION FOR LICENSE: 
TERM (REPEALED) 

Statutory Authority G.S. 113-134; 113-273. 

.0408 REVOCATION OF LICENSE 
(REPEALED) 

Statutory Authority G.S. 1/3-134; 113-273; 
113-276.2. 

SECTION .0700 - FISH PROPAGATION 

.0702 APPLICATION FOR AND TERM OF 
LICENSE (REPEALED) 

Statutory Authority G.S. 113-134; 113-173. 

.0709 REVOCATION AND NONRENEWAL OF 
LICENSE (REPEALED) 

Statutory Authority G.S. 113-/34; 113-273; 
1/3-276.2. 

SECTION .0900 - GAME BIRD PROPAGATORS 

.0902 APPLICATION FOR AND TERM OF 
LICENSE (REPEALED) 



NORTH CAROLINA REGISTER 



448 



PROPOSED RULES 



Statutory- Authority G.S. 113-134; 113-273. 

SECTION .1000 - TAXIDERMY 
.1001 TAXIDERMY LICENSE (REPEALED) 

Statutory Authority G.S. 113-134; 113-273. 

i V otice is hereby given in accordance with G.S. 
1 SOB- 12 that the Wildlife Resources Commission 
intends to amend regulations cited as 15 NCAC 
10B .0106; .0202; .0203; .0403; IOC .0205; 10D 
.0002; .0003; 10F .0102; .0103; .0104; 10H .0101; 
.0301; .0302; .0706; .0809; .0901. 



Th 



he proposed effective dale of this action is 
March 1, 1988. 



Th 



he public hearing will be conducted at 10:00 
a.m. on Sovember 18, 198 7 at Room 386, Arch- 
dale Building. 512 N. Salisbury Street, Raleigh, 
NC 2^611. 



Cc 



omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. The record of hearing will be open for 
receipt of written comments from the 16th of Oc- 
tober to 5:00 p.m. on Sovember 16. 198 7 . Such 
written comments must be delivered or mailed to 
the Wildlife Resources Commission. 512 N. Sal- 
isbury St., Raleigh. XC 27611. 

SUBCHAPTER 10B - HUNTING AND 
TRAPPING 

SECTION .0100 - GENERAL REGULATIONS 

.0106 WILDLIFE KILLED FOR 

DEPREDATIONS OR ACCIDENTALLY 

(e) Reporting Requirements. The killing and 
method of disposition of every game animal and 
game bird, every furbearing animal, and every 
nongame animal or nongame bird for which 
there is no open season, when killed for com- 
mitting depredations to property, either with or 
without a permit, shall be reported to the Wildlife 
Resources Commission within five working days 
following the date of such killing, except that 
when the carcass or pelt of a fox. killed under a 
depredation permit, or of a furbearing animal, 
killed with or without a permit, is lawfully sold 
to a licensed fur dealer in this State the fur dealer 
is required to report the source of acquisition and 
no report is required of the seller. YNTien wildlife 
i* killed accidentally bv motor vehicle e* other 
wise. && report is required e xc e pt fef b e ar. deer. 
feK »«4 v4W turkey. &e killing e4~ which r . hall be 
reported te the Communion within ftve working 



days. Th e re a*e He- reporting roquiromonto fo? 
nongame animalo &* nongamo birda fof which 
there i% a» opon ooason when killed e ither acci 
dentally ©f fof control ef depredations to prop 

Statutory Authority G.S. 113-134; 113-273; 
1/3-274; 113-291.4; 113-291.6; 113-300. 1; 113- 
300.2. 

SECTION .0200 - HUNTING 

.0202 BEAR 

(b) No Open Season. There is no open season 
in any area not included in Paragraph (a) of this 
Rule or in those parts of counties included in the 
following posted bear sanctuaries: 

Avery, Burke and Caldwell Counties--Daniel 

Boone bear sanctuary 
Beaufort, Bertie and Washington Counties- 
Bachelor Bay bear sanctuary 
Beaufort and Craven Counties--Big Pocosin 

bear sanctuary 
Beaufort »h4 Martin Counties J aj*4 W bear 

sanctuary 
Beaufort and Pamlico Counties- -Gum Swamp 

bear sanctuary 
Bladen County—Suggs Mill Pond bear 

sanctuary 
Brunswick County— Green Swamp bear 

sanctuary 
Buncombe, Haywood, Henderson and Tran- 
sylvania Counties- -Pisgah bear 

sanctuary 
Carteret County — Lukens Island beaf 

sanctuary 
Carteret, Craven and Jones Counties— Croatan 

bear sanctuary 
Clay County— Fires Creek bear sanctuary 
Currituck County— North River bear sanctuary 
Dare County— Bombing Range bear sanctuary 
Haywood County— Harmon Den bear 

sanctuary 
Haywood County— Sherwood bear sanctuary 
Hyde County— Gull Rock bear sanctuary 
Hyde County— Pungo River bear sanctuary 
Hyd e County — Scranton beaf sanctuary 
Jones and Onslow Counties— Hofmann bear 

sanctuary 
Macon County— Standing Indian bear 

sanctuary 
Macon County— Wayah bear sanctuary 
Madison County— Rich Mountain bear 

sanctuary 
McDowell and Yancey Counties— Mt. Mitchell 

bear sanctuary 
Mitchell and Yancey Counties- Flat Top bear 

sanctuary 



449 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



Pasquotank and Perquimans Counties—Dis- 
mal Swamp bear sanctuary 

Tyrrell and Hyde Counties— Hollow Ground 
Swamp bear sanctuary 

Washington County- Bull Bay bear sanctuary 

Wilkes County— Thurmond Chatham bear 
sanctuary 

Statutory Authority G.S. 113-134; 113-291.2; 
113-291.7; 113-305. 

.0203 DEER (WHITE-TAILED) 

(e) Bag Limits 

(1) Male Deer With Visible Antlers. Daily, 
two; possession, two; season, four. 

(2) Antlerless Deer. Where antlerless deer 
may be lawfully taken, a maximum of two 
antlerless deer may be substituted for an 
equal number of antlered deer in the limits 
contained in Subparagraph (1) of this 
Paragraph, and one additional antlerless 
deer is permitted without substitution 
when taken during a» a gun either-sex 
season in a county or part of county in- 
cluded in Part (A) of Subparagraph (b)(1) 
of this Rule. Antlerless deer include ma- 
les with knobs or buttons covered by skin 
or velvet as distinguished from spikes 
protruding through the skin. 

(3) Managed Game Land Hunts. Excluded 
from the possession and season limits set 
forth in Subparagraphs (1) and (2) of this 
Paragraph are deer of either sex taken by 
permittees engaged in managed hunts 
conducted on game lands in accordance 
with 15 NCAC 10D .0003(d)(4) and (5), 
such deer being in addition to the specific 
possession and season limits set out in this 
Paragraph. 

Statutory Authority G.S. 113-134; 113-270.3; 
113-276.1; 113-291.1; 113-291.2. 

SECTION .0400 - TAGGING FURS 

.0403 APPLICATION FOR TAGS 

t-e) 43** hst ef furbearing animals contained fo 
Paragraph te) ef this Rule, a«4 the Sees charged 
fop the tags fef each ate subject te- revision from 
time te time, a* may be deemed appropriate afi4 
e quitable, by the Wildlife Resources Commis 
sion. Prior te making a»y such change, the 
Commission wSl coll e ct a«4 analyse data eb- 
tained from the records a»d reports ef licensed 
fof dealers a«4 other available sources te- det e r 
mine the number ef each sp e cies taken a«4 the 
prices received by hunters a»4 trappers fof paw 
fof*7 consider the market price a«4 d e mand fof 



pelts » tormo ef potontial adverso affect e» tb# 
status ef each opocios, aa4 proposo the changoo 
at the annual public hearings oonducted i» pfe- 
mulgation ef the hunting aa4 trapping rogu 
lationo fof the succooding season. 

Statutory Authority G.S. 113-134; 113-273; 
113-276.1; 113-291.4. 

SUBCHAPTER IOC - INLAND FISHING 
REGULATIONS 

SECTION .0200 - GENERAL REGULATIONS 

.0205 PUBLIC MOUNTAIN TROUT WATERS 

(b4 Revocation ef D e signation, fo &f*y ease 
whero designated publio mountain trout waters 

a ca 1 r> t~" 1 1 \~\t\ oa t-t-t a -~* * a Qfla * t -~^ iaja ""t" 1 q r\ /A ■ . r^ ,-1 i l-i q 

111 O 1 \J \~M I \-^J Ull U 1 UU I WLV 111 L l__T l.'l 1 » HIV TTTTTTT I ! I 1U (I H' 

owner ef poroon m chargo thoroof subsequently 
restricts ef prohibits pubho access thoreto, ef 
where a«y body ef wator ef portion thoroof pfe- 
viously se- designated bocomos totally unsuitablo 
as such by r e ason ef changed conditions, the de- 

waters shaU be automatically revoked a«4 a f*e- 

<i.'^ »"* t riii-h rfll f /-t I'nti nn f Vi --i 1 I QA I ■ I 1 1 ■"* n - i<h 4 \-\ ,-i 

rrcrr \si u ul! t ivt non l hj i 1 ui tun i^^j rirw tttttt c i iu 

clerk ef the superior court fo the county wherein 
such waters afe located. 44*e Executiv e Director 
shall th e reupon caus e the posters indicating such 
designation te be removed. 
(ef (b) Fishing in Trout Waters 

(1) General Trout Waters. It is unlawful to 
take fish of any kind by any manner 
whatsoever from designated public 
mountain trout waters during the closed 
season for trout fishing. The seasons, size 
limits, and creel and possession limits on 
trout apply in all waters whether desig- 
nated or not as public mountain ' trout 
waters. Except in power reservoirs and 
city water supply reservoirs so designated, 
it is unlawful to fish in designated public 
mountain trout waters with more than 
one line. 

(2) Native Trout Waters. Fishing in native 
trout waters designated in Subparagraph 
(2) of Paragraph (a) of this Rule is subject 
to the same restrictions as are applied to 
native trout waters located on game lands 
by 15 NCAC 10D .0004(b)(1) as to fish- 
ing hours and 15 NCAC 10D .0004(b)(4) 
as to seasons, creel and size limits, and 
manner of taking. 

Statutory Authority G.S. 1/3-134; 113-272; 
113-292. 

SUBCHAPTER I0D - GAME LANDS 
REGULATIONS 



NORTH CAROLINA REGISTER 



450 



PROPOSED RULES 



.0002 GENERAL REGULATIONS REGARDING 
USE 

(f) Trapping. Subject to the restrictions con- 
tained in 15 NCAC 10B .0110, .0302 and .0303, 
trapping of furbearing animals is permitted on 
game lands during the applicable open seasons, 
except that trapping is prohibited: 

(1) on the field trial course of the Sandhills 
Game Land; aft4 the a*ea adjoining the 
6el4 trial couroo »» the north which t& 
bounded e» the e&st by- S-R- 1003, e» the 
north by Nak e d Creek a»4 e» the west 

*~» i ' A A I ■ . »-i . ^ ■ 
KJ j m) E7CQ l\J J 

(2) on the Harmon Den and Sherwood bear 
sanctuaries in Haywood County; 

(3) in posted "safety zones" located on any 
game land; 

(4) by the use of multiple sets (with anchors 
less than 15 feet apart) or bait on the Na- 
tional Forest Lands bounded by the Blue 
Ridge Parkway on the south, US 276 on 
the north and east, and NC 215 on the 
west; 

(5) on that portion of the Butnor Game Land 
Butner-Falls of Neuse Game Lands 
marked as the Penny Bend Rabbit Re- 
search area; 

(6) on Cowan's Lord Waterfowl Refuge in 
Gaston. Lincoln and Mecklenburg Coun- 
ties. 

(h) Vehicular Traffic. No person shall drive a 
motorized vehicle on a road or trail posted 
against vehicular traffic or oxcopt »«• U.S. Forest 
Service lands other than on roads maintained for 
vehicular use on any game land; provided that 
this provision shall not apply to participants in 
scheduled bird dog field trials held on the Sand- 
hills Game Land. 

Statutory Authority G.S. 113-134; 113-264; 
113-270.3; 113-291.2; 113-291.5; 113-305; 113- 
306. 

.0003 HUNTING ON GAME LANDS 

(c) Time and Manner of Taking. Except where 
closed to hunting or limited to specific dates by 
these regulations, hunting on game lands is per- 
mitted during the open season for the game or 
furbearing species being hunted. On managed 
waterfowl impoundments, hunters shall not enter 
the posted impoundment areas earlier than 4:00 
a.m. on the permitted hunting dates, and hunting 
is prohibited after 1:00 p.m. on such hunting 
dates. On Butnor. balls ©f Neuse, Butner-Falls 
of Neuse, New Hope and Shearon Harris Game 
Lands waterfowl hunting is limited to the period 
from one-half hour before sunrise to 1:00 p.m. 



on the open hunting days. No person shall op- 
erate any vessel or vehicle powered by an internal 
combustion engine on a managed waterfowl im- 
poundment. 

No person shall attempt to obscure the sex or 
age of any bird or animal taken by severing the 
head or any other part thereof, or possess any 
bird or animal which has been so mutilated. 

No person shall place, or cause to be placed on 
any game land, salt, grain, fruit, or other foods 
without prior written authorization of the com- 
mission or its agent and no person shall take or 
attempt to take any game birds or game animals 
attracted to such foods. No person shall use an 
electronic calling device for the purpose of at- 
tracting wild birds or wild animals. 

No live wild animals or wild birds shall be re- 
moved from any game land, 
(d) Hunting Dates 
(2) Any game may be taken during the open 
seasons on the following game lands and 
hunting is limited to Mondays, Wednes- 
days, Saturdays and Thanksgiving, 
Christmas and New Years Days. In ad- 
dition, deer may be taken with bow and 
arrow en the opening day of the bow and 
arrow season for deer. Raccoon and 
opossum hunting may continue until 7:00 
a.m. on Tuesdays, until 7:00 a.m. on 
Thursdays, and until midnight on Satur- 
days. Additional restrictions apply as in- 
dicated in parentheses following specific 
designations: 
Ashe County- -Carson Woods Game Land 
Beaufort and Craven Counties--Big Pocosin 
Game Land (Dogs may not be trained or 
used in hunting from March 2 to August 
31. Trapping is controlled by the land- 
owner.) 
Bertie County-- Bertie County Game Lands 
Bladen County— Bladen Lakes State Forest 
Game Lands (Handguns may not be 
carried and, except for muzzle-loaders, ri- 
fles larger than .22 caliber rimfire may not 
be used or possessed. On the Breece 
Tract and the Singletary Tract deer and 
bear may be taken only by still hunting.) 
Cabarrus County—River View Acres Game 

Land 
Caswell County—Caswell Game Land 
(That part designated and posted a s a 
"safety zone" is closed to all hunting and 
trapping, and entry upon such area for 
any purpose, except by authorized per- 
sonnel in the performance of their duties, 
is prohibited. On areas posted as "re- 
stricted zones" hunting is limited to bow 
and arrow.) 



451 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



Catawba, Lincoln, Gaston and Iredell 
Countics--Catawba Game Land 

Lenoir County--H.M. Bizzell, Sr., Game 
Land 

Onslow County—White Oak River Im- 
poundment Game Land (In addition to 
the dates above indicated, waterfowl may 
be taken on the opening and closing days 
of the applicable waterfowl seasons.) 

Pender County--Holly Shelter Game Land 
(In addition to the dates above indicated, 
waterfowl may be taken on the opening 
and closing days of the applicable water- 
fowl seasons.) 

Richmond, Scotland and Moore Counties- 
-Sandhills Game Land (The regular gun 
season for deer consists of the open hunt- 
ing dates from the second Monday before 
Thanksgiving to the third Saturday after 
Thanksgiving except on the field trial 
grounds where the gun season is from the 
second Monday before Thanksgiving to 
the Saturday following Thanksgiving. 
Deer may be taken with bow and arrow 
on all open hunting dates during the bow 
and arrow season, as well as during the 
regular gun season. Deer may be taken 
with muzzle-loading firearms on Monday, 
Wednesday and Saturday of the second 
week before Thanksgiving week, and 
during the regular gun season. Except for 
the deer seasons above indicated and the 
managed either-sex permit hunts, the field 
trial grounds are closed to all hunting 
during the period October 22 to March 
31. In addition to the regular hunting 
days, waterfowl may be taken on the 
opening and closing days of the applicable 
waterfowl seasons.) 

Robeson County— Keith Farm Game Land 
(No deer may be taken.) 

Stokes County— Sauratown Plantation 
Game Land 

Yadkin County-- Huntsville Community 
Farms Game Land 
(3) Any game may be taken on the following 
game lands during the open season, except 
that: 

(A) Bears may not be taken on lands des- 
ignated and posted as bear sanctuaries; 

(B) Wild boar may not be taken with the 
use of dogs on such bear sanctuaries, and 
wild boar may be hunted only during the 
bow and arrow seasons and the regular 
gun season on male deer on bear sanctu- 
aries located in and west of the counties 
of Madison, Buncombe, Henderson and 
Polk; 



(C) On game lands located in or west of the 
Counties of Rockingham, Guilford, Ran- 
dolph, Montgomery and Anson, dogs 
may not be used for any hunting (day or 
night) during the regular season for hunt- 
ing deer with guns; except that small game 
may be hunted with dogs in season on all 
game lands, other than bear sanctuaries, 
in the counties of Cherokee, Clay, Jack- 
son, Macon, Madison, Polk and Swain; 

(D) On Croatan, Goose Creek, New Hope 
and Shearon Harris Game Lands water- 
fowl may be taken only on Mondays, 
Wednesdays, Saturdays; on Thanksgiving, 
Christmas and New Years Days; and on 
the opening and closing days of the ap- 
plicable waterfowl seasons; except that 
outside the posted waterfowl impound- 
ments on Goose Creek Game Land 
hunting any waterfowl in season is per- 
mitted any week day during the last 10 
days of the regular duck season as estab- 
lished by the U.S. Fish and Wildlife Ser- 
vice; 

(E) On the posted waterfowl impound- 
ments of Gull Rock Game Land hunting 
of any species of wildlife is limited to 
Mondays, Wednesdays, Saturdays; 
Thanksgiving, Christmas, and New Years 
Days; and the opening and closing days 
of the applicable waterfowl seasons; 

(F) On bear sanctuaries in and west of 
Madison, Buncombe, Henderson and 
Polk Counties dogs may not be trained 
or allowed to run unleashed between 
March 1 and October 11; 

(G) Additional restrictions apply as indi- 
cated in parentheses following specific de- 
signations; and 

(H) On Butnor, Pafe Butner- Falls of Neuse 
and Person Game Lands waterfowl may 
be taken only on Tuesdays, Thursdays 
and Saturdays, Christmas and New Years 
Days, and on the opening and closing 
days of the applicable waterfowl seasons. 
Alexander and Caldwell Counties— Brushy 

Mountains Game Lands 
Anson County— Anson Game Land 
Ashe County— Bluff Mountain Game Lands 
Ashe County— Cherokee Game Lands 
Ashe and Watauga Counties-Elk Knob 

Game Land 
Avery, Buncombe, Burke, Caldwell, Hay- 
wood, Henderson, Jackson. Madison, 
McDowell, Mitchell, Transylvania, Wa- 
tauga and Yancey Counties— Pisgah Game 
Lands (Harmon Den and Sherwood Bear 
Sanctuaries in Haywood County are 



NORTH CAROLINA REGISTER 



452 



PROPOSED RULES 



closed to hunting raccoon, opossum and 
wildcat. Training raccoon and opossum 
dogs is prohibited from March 1 to Octo- 
ber 1 1 in that part of Madison County 
north of the French Broad River, south 
of US 25-70 and west of SR 1319.) 
Beaufort, Bertie arid Washington Coun- 
ties-- Bachelor Bay Game Lands 
Beaufort and Pamlico Counties--Goose 

Creek Game Land 
Brunswick County— Green Swamp Game 

Land 
Burke County—South Mountains Game 

Lands 
Burke, McDowell and Rutherford Coun- 
ties— Dysartsville Game Lands 
Caldwell County— Yadkin Game Land 
Carteret County — Lukens Island Gamo Land 
Carteret, Craven and Jones Counties— Croa- 

tan Game Lands 
Chatham County— Chatham Game Land 
Chatham and Wake Counties—New Hope 

Game Lands 
Chatham and Wake Counties— Shearon 

Harris Game Land 
Cherokee, Clay, Graham, Jackson, Macon, 
Swain and Transylvania Counties— Nant- 
ahala Game Lands (Raccoon and opos- 
sum may be hunted only from sunset 
Friday until sunrise on Saturday and from 
sunset until 12:00 midnight on Saturday 
on Fires Creek Bear Sanctuary in Clay 
County and in that part of Cherokee 
County north of US 64 and NC 294, east 
of Persimmon Creek and Hiwassee Lake, 
south of Hiwassee Lake and west of 
Nottely River; in the same part of Cher- 
okee County dog training is prohibited 
from March 1 to October 11. It is un- 
lawful to train dogs or allow dogs to run 
unleashed on Fires Creek Bear Sanctuary 
at any time, except that dogs may be used 
when hunting raccoon or opossum and 
for hunting grouse and rabbits during the 
open seasons. It is unlawful to train dogs 
or allow dogs to run unleased on any 
game land in Graham County between 
March 1 and October 11.) 
Chowan Countv—Chowan Game land 
Cleveland County— Gardner-Webb Game 

Land 
Craven County-- seuse River Game Land 
Craven County— Tuscarora Game Land 
Currituck County— North River Game Land 
Currituck County— Northwest River Marsh 

Game Land 
Dare County— Dare Game Land (No hunt- 
ing on posted parts of bombing range.) 



Davidson, Davie and Rowan Counties-Al- 
coa Game Land 
Davidson County— Lin wood Game Land 
Davidson, Montgomery, Randolph and 

Stanly Counties— Uwharrie Game Land 
Duplin and Pender Counties- -Angola Bay 

Game Land 
Durham, aft4 Granville and Wake Coun- 
ties— Butnor Gam e Land Butner-Falls of 
Neuse Game Lands (On that portion 
posted as the National Guard Rifle Range 
hunting and trapping is prohibited except 
during the following period: The second 
Monday before Thanksgiving to January 
1. On portions of the Butnor Gamo Land 
Butner-Falls of Neuse Game lands des- 
ignated and posted as "safety zones" and 
on that part marked as the Penny Bend 
Rabbit Research Area no hunting is per- 
mitted. On portions posted as "restricted 
zones" hunting is limited to bow and ar- 
row during the bow and arrow season and 
the regular gun season for deer.) 
Durham, Granvill e a»4 Walco Counties 

Falls &f Nouso Gamo Lands 
Franklin County— Franklin Game Lands 
Gates County— Chowan Swamp Game 

Land 
Granville County— Granville Game Lands 
Halifax County—Halifax Game Land 
Harnett County— Harnett Game Land 
Henderson, Polk and Rutherford Coun- 
ties—Green River Game Lands 
Hyde County—Gull Rock Game Land 
Hyde County— Pungo River Game Land 
Hyde and Tyrrell Counties— New Lake 

Game Land 
Johnston County Johnston Gamo Land 
Jones and Onslow Counties— Hofmann 

Forest Game Land 
Lee County-- Lee Game Land 
McDowell County—Hickory Nut Mountain 

Game Land 
Moore County— Moore Game Land 
New Hanover County— Catfish Lake Game 

Land 
Northampton County— Northampton Game 

Land 
Orange County-Orange Game Land 
Person County-- Person Game Land 
Richmond County-- Richmond Game Land 
Transylvania County— Toxaway Game Land 
Tyrrell County — Alligator Crook Gamo Land 
Vance County— Vance Game Land 
Wak e County Wake Gamo Land 
Warren County— Warren Game Lands 
Washington County Scuppornong Gam e 



453 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



Wilkes County-Thurmond Chatham Game 
Land 

Statutory Authority G.S. 1 13- 1 34; 113-264; 
113-291.2; 1/3-291.5; 113-305. 

SUBCHAPTER 10F - MOTORBOATS AND 
WATER SAFETY 

SECTION .0100 - MOTORBOAT 
REGISTRATION 

.0102 APPLICATION FOR CERTIFICATE 
OF NUMBER 

(b) Individual Owners. 
(4} Aft application fef a certificat e ef number, 
accompanied by a fee »f five dollars an4 
fifty cents ($5.50) few a one year period 
&f-; at the option et the applicant, thirteen 
dollars ($13.00) fe>f a throe year period, 
shall be sent te the addr e ss » Subpura 
graph (a)(5) ef this Rule. Applications 
net containing all ef the required infor 
mation will be rotumod te the applicant 
few completion ane ne certificate ef num 
bef will be issued until aH ef the informa 
tiee is supplied. 
(4) The application shall contain the following 
information: 

(A} £1} name of owner; 

(444 (2) address of owner, including zip code; 

{Of (_3| date of birth of owner; 

(4^} [4] citizenship of owner; 

(44 (_5) state of principal use of vessel; 

(4*) (6| present or previous boat number (if 
any); 

(4*4 (7| desired period of registration (one 
or three years); 

(444 (8) use of vessel (pleasure, livery, dem- 
onstration, commercial passenger, com- 
mercial fishing, other); 

(44 (9) make of vessel (if known); 

(44 (10) year of manufacture or model year 
(if known); 

(4v4 (11) manufacturer's hull identification 
number (if any); 

(44 (12) overall length of vessel; 

(A44 (13) type of vessel (open, cabin, house, 
other); 

fN} ( 14) hull material (wood, steel, alumi- 
num, fiberglass, plastic, other); 

(©4 ( 15) type of propulsion (inboard, out- 
board, inboard- outdrive, sail, and engine 
make if available); 

fP4 (16) type of fuel (gasoline, diesel, other); 

(444 (17) certification of ownership; 

fR-) ( IS) signature of owner. 



Authority G.S. 75A-3; 75A-5; 75A-7; 75 A- 19; 33 
C.F.R. 174.17. 

.0103 TRANSFER OF OWNERSHIP 

(a) Transfer Direct from One Individual Owner 
to Another Individual Owner 

(1) If the ownership of a registered motorboat 
is changed during the registration period, 
the owner shall complete the statement 
of transfer on the reverse side of the cer- 
tificate of number, date as of the day of 
the transaction, sign, and deliver to the 
new owner. 

(2) The new owner shall apply for a new cer- 
tificate of number on an official applica- 
tion form. If the prior registration ef the 
motorboat » st+44 m forco, the application, 
accompaniod by a fee ef twe dollars 
($2.00) i» chock e* money ordor, shall be 
seat te the address given above. Upon 
receipt ef a proporly oomplotod applica 
tien an4 fee? the Wildlife Resources 
Commission will isr . uo a new certificate 
ef number m the new owner's name valid 
fe>f the remainder ef the current rogistra 

TTTTTT l 'V- 1 l\ 'U . TT I 1 IV. I'll V.H I V rj \J\. IUIHMI Ul I 1 1\J 

motorboat has oxpirod, this application 
must be accompani e d by a fee ef five 
dollars a»4 fifty cents ($5.50) ef thirteen 
dollars ($13.00) depending e» the regis 
tration period desir e d. The original 
number must be retained when a vessel 
numbered is again registered as a motor- 
boat. 

(b) Transfer of a Previously- Registered Mo- 
torboat Through a Dealer 

(1) The owner transferring his motorboat to 
a dealer during the registration period 
shall give the certificate of number to the 
dealer after dating and signing the state- 
ment of transfer on the reverse side of the 
certificate on the day of the transaction. 

(2) When the motorboat is sold by the dealer, 
he shall date and sign the certificate of 
number on the reverse side on the day of 
the transaction and deliver it to the new 
owner. 

(4) 44*e new owner shall apply fof a new eer- 

1 il|."it.i ri t nn tag "'"• '"> rw 1 Bfl * ' I Q C '"* ' ' t iM i I \ I 1 \ y i \ 

dollars ($2.00), five dollars an4 fifty cents 
($5.50), ef thirteon dollars ($13.00) as ap- 
propriate » accordance with the pro 
visions ef Subparagraph (-3) ef Paragraph 
kn ef thts Rule. 
(4f (_3j For a period of 30 days following the 
transfer of ownership of a registered mo- 
torboat from or through a dealer to a new 
owner, the new owner may use the certif- 



NORTH CAROLINA REGISTER 



454 



PROPOSED RULES 



icate of the prior individual owner as a 
temporary certificate of number pending 
receipt of his own certificate; provided: 

(A) The certificate is endorsed in accord- 
ance with Subparagraphs (1) and (2) of 
this Paragraph. 

(B) The original owner endorsed the certif- 
icate to the boat dealer while it was still 
in force, and 

(C) The boat dealer's sale and endorsement 
occurs while the registration certificate is 
still in force. 

(44 (4) Except as permitted above, a certificate 
of number may not be used after the ex- 
piration of the registration period. 
(e) Demonstration and Use of Vessels Held by 
Dealers 

(1) Demonstration of registered motorboats 
held by dealers for sale may be with the 
use of the certificate of number endorsed 
by the original owner so long as the reg- 
istration is in force. Any dealer or any 
permittee of a dealer demonstrating a 
motorboat must utilize a set of dealer's 
numbers and the corresponding dealer's 
certificate of number on such vessel after 
the original certificate of number has ex- 
pired. The dealer's numbers and certif- 
icate of number may, however, be used 
during demonstrations before the end of 
the registration period at the option of the 
dealer. In any event, where a set of deal- 
er's numbers is used upon a previously- 
numbered vessel, the original numbers 
must be covered in accordance with Rule 
.0106(c) of this Section. 

(2) Dealers who have bought or otherwise 
possess motorboats for resale and who 
wish to operate or lend out such motor- 
boats for more general uses than for de- 
monstration only must have the 
individual motorboat registrations trans- 
ferred to their names. This is to be don e 
by mciking application fof transfer el the 
certificate' ©I number a«4 enclosure ©I a 
fee ©I Hv© dollars ($3.0*1), five dollars a»4 
fifty cents ($5.50), ©f thirt ee n dollars 

the provisions el Subparagraph (4) el 
Paragraph (af el this R.ulo. 

Authority G.S. 75.4-3; 75.4-5; 75.4-19; 33 C.F.R. 
174.21. 

.0104 CERTIFICATE OF NUMBER 

(a) General 

(44 I'pon receipt of a properly completed ap- 
plication, together with fee, the Wildlife Re- 



sources Commission shall issue to the applicant 
a certificate of number which shall include the 
following information: 

(A) (JQ name of owner; 

(444 (2) address of owner, including zip code; 

(C4 (3) state of principal use of vessel; 

(4A4 (4) number awarded to vessel; 

£E4 (5) expiration date of certificate; 

(44 (6) use of vessel (pleasure, livery, demon- 
stration, commercial passenger, commer- 
cial fishing, other); 

(G4 {Jl ma ke °f vessel (if known); 

(44} (8) year of manufacture or model year (if 
known); 

(44 (9} manufacturer's hull identification num- 
ber (if any); 

(4} (10) overall length of vessel; 

(44) (11) type of vessel (open, cabin, house, 
other); 

(44 (12) hull material (wood, steel, aluminum, 
fiberglass, plastic, other); 

(At) (13) type of propulsion (inboard, out- 
board, inboard- outdrive, sail); 

(N4 (14) type of fuel (gasoline, diesel, other); 

(©4 ( 15) notice to owner that he shall report 
within 15 days changes of address or 
ownership, and destruction or abandon- 
ment of vessel; 

(424 (16) notice to the owner that the operator 
shall: 
(+4 (A) always carry this certificate on vessel 

when in use; 
(a) {_Bj report every accident involving injury 
or death to persons, or property damage 
over one hundred dollars ($100.00); 
(44 (CJ stop and render assistance if in- 
volved in boating accident. 

44 44S© certificate el number shall be pocket 
see (approximately twe aft4 one half 
inches by thr e e a»4 ono half inches) a»4 
shall be available at aft times le* «- 
spoction ©» the motorboat £©f which is- 
sued, whenever such motorboat is ift 
op e ration. 

(44 Each certificat e ©I number shall continue 

rTTTT 1 \J 1 L'L' HI I\l CTTCTT I \J U.1 111 11 1 1 1 UU LI 1 L_ TTTU 

last day ©I the same month during which 
the same was awarded aft e r the laps e ©I 
ono year ift the ease ©I a one year cert if 
icate ©f three years ift the ease ©I a three 
yea? certificate. Application fof renewal 
j&ey be made ©ft a form provided by the 
Wildlif e Resources Commission a»4 ae- 
companied by a fee ©I five dollars aft4 fifty 
cents ($5.50) £©f a one year period ©f 
thirt ee n dollars ($13.00) fof a three > e ar 
period 



455 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



f4} A certificate ©f numbor lest ©f destroyed 
wiU be duplicatod h«4 roplacod by the 
Wildlif e Rooourc e o Commiooion upon 
oubmisoion by tbe owner ef a sign e d 
otatomont indicating the ciroumstanooo ©f 
ouch less ©f dootruction, together with a 
fee ef tw© dollars ($2.00). A lest ©f de- 
otroyod validation ducal may be roplacod 
ift the oamo manner without charge. 

f£) Cortificatos ©f number f&F motorboato 
ownod by the Unit e d Statoo, a otato, ©f a 
oubdivision thoroof, may be ioouod by the 
Wildlife Rosourcoo Commission without 
payment ef a fee upon application » the 
mannor proscribed » thos e Regulations. 
Tbe certificat e ©f numbor issued fe* any 
ouch motorboat shall beat tie oxpiration 

"permanent" and shall H©t be renewable 
s© le©g as the v e soel remains the property 
©f the governmental entity. If the owner 
ship ©f any ouch motorboat is transferred 
from eee governmontal entity te another, 
a Hew "permanent" certificate may be is- 
suod without charg e t© the ouccoooor gov 
ommontal entity. Whon a»y such 

motorboat is se44 te a privat e ownor ©f is 
othorwioo tranoforrod t© privat e owner 
ship , the applicable certificate ©f numbor 
shall be doomed t© hav e expired immo 
diatoly prior t© such transfer, a«4 the 
numbor affix e d ©» e ach side ©f the boat 
shall be either removed ©f p e nnanently 

ej^^^^^^^^^^^4 1^^^ i v 1 1 n t ' ^ r • * L ' ■ ^ * r fc L ^' 1'ir b ^ 1 1 , J., * 
^^^^^TJT \^J U J l-TJ.il 1 1 \J\ III LH_f TTTv \ } 1 1 1 L 1 LI tCB 

tiv© manner by the transferring agency. 
Prior te further use ©» the waters ef this 
State, the new owner shall obtain oithor a 
temporary c e rtificat e ©f numbor ©f a Feg- 
©faF certificate bearing a Hew numb e r as 
provided by Reies m$2 ef ^eWe ©f this 
Section, as i» tbe ease ef original rogjstra 
tion. Withm 44 days aft e r any transfer ©f 
a motorboat numbered under this Sub 
paragraph, the transferring agoncy shall 
provido the Motorboat Registration See- 
tie© ef the Wildlifo Rosouroos Commis 
siee witb written notice ef the ©ate ©f 
transfer a©d the name a&4 addrooo ©f the 
transferee. 

Authority G.S. 75A-3; 75A-5; 75A-7; 75 A- 19; 33 
C.F.R. J 74./ 9. 

SUBCHAPTER 10H - REGULATED ACTIVITIES 

SECTION .0100 - CONTROLLED SHOOTING 
PRESERVES 

.0101 LICENSE TO OPERATE 



It is unlawful £©f a»y individual, firm, associ 
ation, ©f corporation te operate a controlled 
shooting prooorvo without fifst obtaining from 
the North Carolina Wildlifo R,osourooo Commis 
sie» a lioonoo fe* this purpose. "Controlled 
ohooting prooorvo" moano a» aiea ©» which ©eiy 
domestically raioed game birds are t alien. A 
controlled shooting preserve license shall entitle 
the holder or holders thereof, and their guests, to 
kill or take, during an extended season, starting 
October 1 and ending March 31, on such pre- 
serves by shooting only, and without regard to 
sex or bag limits, domestically-raised pheasants, 
chukar partridges, Hungarian partridges, domes- 
tic ducks (as defined by the United States Bureau 
of Sport Fisheries and Wildlife), or other game 
birds, except wild turkey. Application for con- 
trolled shooting preserve licenses shall be made 
on standard forms obtainable from the commis- 
sion. Applicants must be prepared to show sat- 
isfactory proof of ownership of the land 
contained in the proposed shooting preserve or 
that they have this land under proper lease for the 
duration of the license period. Upon receipt ©f 
a© application accompanied by a fee ©f fifty deb 
lafs ($50.00), the commission shall ioouo a licence, 
provided it is determin ed tbat the location a©4 
operation ©f ouch a shooting prooorvo is consist 
eet witb the wildlife conservation program an© 
» the public interest; and further provided, tbat 
afi regulations heroin regarding establishment ©f 
such areas have boon complied with. Controlled 
ohooting preserve licenses ohall net be transfora 
bk>7 oithor as te operator ©f as t© sit© ©f opera 

Statutory Authority G.S. 113-134; 113-273. 

SECTION .0300 - HOLDING WILDLIFE IN 
CAPTIVITY 

.0301 GENERAL REQUIREMENTS 

(a) Captivity Permit 

(1) Requirement. The possession of any 
species of wild animal which is or once 
was native to this State or any species of 
wild bird which naturally occurs or his- 
torically occurred in this State, being na- 
tive or migratory, is unlawful unless the 
institution or individual in possession 
thereof has first obtained from the Wildlife 
Resources Commission a captivity permit 
or a captivity license as required by this 
Rule. 

(2) Injured or Crippled Wildlife. Notwith- 
standing the preceding Subparagraph (1), 
a crippled or injured wild animal or wild 
bird may be taken and kept in possession 



NOR TH CA R OL IN A R EG IS TER 



456 



PROPOSED RULES 



for no longer than five days, provided that 
during such five-day period the individual 
in possession thereof shall apply to the 
Wildlife Resources Commission, or a 
wildlife enforcement officer of the Com- 
mission, for a captivity permit. 

(3) Application and Term. A captivity permit 
will be issued without charge and may be 
issued upon informal request by mail, 
telephone, or other means of communi- 
cation; but such permit shall authorize 
possession of the animal or bird only for 
such period of time as may be required to 
obtain a captivity license as provided by 
Paragraph (b) of this Rule, if such a li- 
cense is desired and is issued, or to make 
a proper disposition of the animal or bird, 
as determined by the Executive Director, 
if such license is not desired or for any 
reason is denied, or when an existing cap- 
tivity license is not renewed or is termi- 
nated. 

{A-f Condition ; : . &f- Captivity. A holder ef" a 
captivity p e rmit issu e d undor thk Para 
graph is Ret required to meet the mini 
mum standards required by R.ul e .0303 &f 
thi* Section ©£ holders ©f a captivity fo 
c e ns e issued under Paragraph (-b) ©I th*s 
Paile. bto the captivity permit must spec 
ify appropriate conditions to- provide saft- 
itary a»4 humane treatment ef the animal 
©f bird. 

f?4 Fish. Notwithstanding the limitations 
contained m Subparagraph to) ©f thk 
Paragraph, permits may be issued to hold 
native species ©f frsb m captivity indefi 
nitely ©rr fo the discretion ©f the Executive 
Director, such permits may be renewable 
periodically, at least once » each three 
y e ars, to provid e r e vi e w ©f the conditions 
under which such fob are kept. 
(b) Captivity License 

( 1 ) Requirement. Except as provided in Par- 
agraph (a) of this Rule, no person shall 
keep any species of wild animal which is 
or once was native to this State or any 
species of wild bird which naturally occurs 
or historically occurred in this State, being 
either native or migratory, without first 
having obtained from the Wildlife Re- 
sources Commission a license to hold the 
particular species of animal or bird in 
captivity. Each species of animal or bird 
shall be the subject of a separate license 
authorizing the holding of one or more of 
the species at a location specified in the 
license. 



(2) Required Facilities. No captivity license 
shall be issued until the applicant has 
constructed or acquired a facility for 
keeping the animal or bird in captivity 
which shall comply with the minimum 
standards set forth in Rule .0302 of this 
Section, and the adequacy of such facility 
has been verified on inspection by a rep- 
resentative of the Commission. 

0) Application for Lic e ns e . Application fof 
a captivity license shall be made ©» a form 
obtainable from the Wildlifo Resources 
Commission, shall contain the informa 
ties required by- the form, and shall be 
accompanied by a license foe m the 
amount ef fore dollars ($5.00); provided 
that- the license may be issued without 
charg e to publicly financed zoos, scientific 
aft4 biological research facilities, and m- 
stitutions ©£ high e r education. 

(4) Issue ©f Denial ef License. U the Execu 
tore Director d e t e rmin e s that- the applica 
tfoft was made » good faith, that- the 
applicant ha* set- been subject to a denial, 
suspension. ©f revocation ©f a license e* 
permit ef a typo described m G.S. 
1 13 276.2(a) within the prec e ding twe- 
y e ars, that the applicant's holding facility 
» ift- compliance with the minimum stan 
dards set forth m R-trle .0302 ef ttos See- 
tion, that the animal ©f bito. which is the 
subject ef the application ha* Bet- been 
acquired unlawfully ©f merely as a petr 
a«4 that fr© other jest cause fof denial ©f 
the license exists, he shall issue to the ap- 
plicant a captivity license authorizing Fe- 
tention ef the animal ©f b«4 concerned. 
U the Executive Director finds that- the 
application was made » good faith bet 
the license is deni e d for other cause, airy 
license fee tendered with- the application 
shall be refunded. 

(4+ (3) Term of License 

(A) Dependent Wildlife. When the wild 
animal or wild bird has been permanently- 
rendered incapable of subsisting in the 
wild, the license authorizing its retention 
in captivity shall be an annual license ter- 
minating on December 3 1 of the year for 
which issued. 

(B) Rehabilitable Wildlife. When the wild 
animal or wild bird is temporarily inca- 
pacitated and may be rehabilitated for re- 
lease to the wild, the captivity license may 
be issued for such period less than one 
year as such rehabilitation may require. 

(C) Concurrent Federal Permit. No State 
captivity license for an endangered or 



45: 



SORTH CAROLINA REGISTER 



PROPOSED RULES 



threatened species or a migratory bird 
shall be operative to authorize retention 
thereof for a longer period than is allowed 
by any concurrent federal permit for its 
retention. 

Statutory Authority G.S. 113-134; 113-272.5; 
113-274. 

.0302 MINIMUM STANDARDS 

(a) Exemptions. Publicly financed zoos, sci- 
entific and biological research facilities, and in- 
stitutions of higher education shall be exempt 
from all of the minimum standards put forth in 
this Rule for all birds and animals except the 
black bear. The following are deemed the mini- 
mum standards for holding the species indicated 
in captivity by all other licensees. 

(b ) Permit to Hold Deer m Captivity 

(1) Enclosure. The enclosure shall be on a 
well-drained site containing trees or brush 
for shade. The minimum size of the en- 
closure shall be not less than one-half acre 
for the first three animals and an addi- 
tional one-fourth acre for each additional 
animal held. The enclosure shall be sur- 
rounded by a sturdy fence at least 10 feet 
high, dog-proof to a height of at least six 
feet. No exposed barbed wire or pro- 
truding nails shall be permitted within the 
enclosure. A roofed building large 
enough to provide shelter in both a 
standing or a lying position for each deer 
must be provided. This building shall be 
closed on three sides and provided with a 
wooden floor. It shall be constructed at 
least 10 feet from the fence. 

(2) Sanitation and Care. Permittees shall 
provide an ample supply of clear water 
and salt at all times. Food shall be placed 
in the enclosure as needed, but in any 
case, not less than three times weekly. 
Straw and leaf litter, replenished every 
week, shall be used as a floor covering in 
the shelter. An effective program for the 
control of insects, ectoparasites, disease, 
and odor shall be established and main- 
tained. The animal must be protected 
against fright. Domestic livestock and 
dogs shall be excluded from the enclosure. 

(c) Pormit to Hold Wild Boars » Captivity 

(1) Enclosure. The enclosure shall be on a 
site containing trees or brush for shade. 
The minimum size of the enclosure shall 
be not less than one-half acre for the first 
three animals and an additional one- 
fourth acre for each additional animal 
held. The enclosure shall be surrounded 



by a sturdy fence at least five feet high. 
No exposed barbed wire or protruding 
nails shall be permitted within the enclo- 
sure. A roofed building large enough to 
provide shelter in both a standing or a ly- 
ing position for each boar must be pro- 
vided. This building shall be closed on 
three sides and provided with a wooden 
or concrete floor. A pool of water for 
wallowing or a sprinkler system shall be 
provided on hot days. 
(2) Sanitation and Care. Permittees shall 
provide an ample supply of clear water at 
all times. Food shall be placed in the en- 
closure as needed. An effective program 
for the control of insects, ectoparasites, 
disease, and odor shall be established and 
maintained. 

(d) Permit to H&W Wild Birds m Captivity 

(1) Enclosure. The enclosure shall be large 
enough for the bird or birds to assume all 
natural postures. The enclosure shall be 
designed in such a way that the birds 
cannot injure themselves and are able to 
maintain a natural plumage. Protection 
from excessive sun, weather, and pre- 
dation shall also be provided. 

(2) Sanitation and Care. The cage shall be 
kept clean, dry, and free from molded or 
damp feed. Ample food and clean water 
shall be available at all times. 

(e) Pormit to Hold Alligators » Captivity 

(1) Enclosure. The enclosure shall be sur- 
rounded by a sturdy fence so as to prevent 
contact between the observer and alliga- 
tor. The enclosure shall contain a pool 
of water large enough for the animal to 
completely submerge itself. If more than 
one animal is kept, the pool must be large 
enough for all animals to be able to sub- 
merge themselves at the same time. A 
land area with both horizontal dimensions 
being at least as long as the animal shall 
also be provided. In case of more than 
one animal, the land area shall have both 
horizontal dimensions at least as long as 
the longest animals to occupy the land 
area at the same time without overlap. 

(2) Sanitation and Care. The water area must 
be kept clean and adequate food provided. 
Protection shall be provided at all times 
from extremes in temperature. 

(0 Permit to Hold Black Bear i» Captivity 
(1) Educational Institutions and Zoos Oper- 
ated or Established by Governmental 
Agencies 
(A) Enclosure. A permanent, stationary 
metal cage, at least eight feet wide by 12 



NORTH CAROLINA REGISTER 



458 



PROPOSED RULES 



feet long by six feet high and located in 
the shade or where shaded during the aft- 
ernoon hours of summer, is required. 
The cage shall have a concrete floor in 
which a drainable pool one and one-half 
feet deep and not less than four by five 
feet has been constructed. The bars of the 
cage shall be of iron or steel at least one- 
fourth inch in diameter, or heavy gauge 
steel chain link fencing may be used. The 
gate shall be equipped with a lock or saf- 
ety catch, and guard rails shall be placed 
outside the cage so as to prevent contact 
between the observer and the caged ani- 
mal. The cage must contain a den at least 
five feet long by five feet wide by four feet 
high and so constructed as to be easily 
cleaned. A "scratch log" shall be placed 
inside the cage. The cage shall be 
equipped with a removable food trough. 
Running water shall be provided for 
flushing the floor and changing the pool. 
(B) Sanitation and Care. Adequate food 
shall be provided daily; and clean, clear 
drinking water shall be available at all 
times. In hot weather, the floor of the 
cage and the food trough shall be flushed 
with water and the water in the pool 
changed daily. The den shall be flushed 
and cleaned at least once each week in hot 
weather. An effective program for the 
control of insects, ectoparasites, disease, 
and odor shall be established and main- 
tained. Brush, canvas, or other suitable 
material shall be placed over the cage to 
provide additional shade when necessary. 
The use of collars, tethers or stakes to re- 
strain the bear is prohibited, except as a 
temporary safety device. 
(2) Conditions Simulating Natural Habitat. 
Black bears held in captivity by other than 
educational institutions or governmental 
zoos must be held without caging under 
conditions simulating a natural habitat 
approved by the Wildlife Resources 
Commission. For a holding facility to be 
deemed in simulation of a natural habitat, 
the following conditions must exist: 

(A) The method of confinement is by chain 
link fence, wall, moat, or a combination 
ot such, without the use of chains or 
tethers. 

(B) The area of confinement is at least one 
acre in extent for one or two bears and an 
additional one-eighth acre for each addi- 
tional bear, and bears are free, under nor- 
mal conditions, to move throughout such 
area. 



(C) At least one-half of the area of con- 
finement is wooded with living trees, 
shrubs and other perennial vegetation ca- 
pable of providing shelter from sun and 
wind. 

(D) The area of confinement contains a 
pool not less than one and one-half feet 
deep and not less than four by five feet in 
size. 

(E) Provision is made for a den for each 
bear to which the bear may retire for rest, 
shelter from the elements, or respite from 
public observation. 

(F) The area of confinement presents an 
overall appearance of a natural habitat 
and affords the bears protection from 
harassment or annoyance. 

(G) Provisions are made for adequate food 
and water and for maintenance of sanita- 
tion. 

(H) No circumstance exists which is calcu- 
lated to avoid, circumvent, defeat or sub- 
vert the purpose of the law or these 
regulations. 
(I) The applicant demonstrates by satisfac- 
tory evidence that he owns or has long- 
term control of the real property upon 
which the holding facility is located. 
(g) Permit to Hold Other Wild Animals m 
Captivity 

( 1 ) Hnclosure. The enclosure must provide 
protection from excessive sun, weather 
and free-ranging animals. A den area in 
which the animal can escape from view 
and large enough for the animal to turn 
around and lie down must be provided for 
each animal within the enclosure. No 
tethers or chains will be used to restrain 
the animal. Fither a tree limb, exercise 
device, or shelf large enough to accom- 
modate the animal must be provided to 
allow for exercise and climbing. 
The single-animal enclosure for the ani- 
mals listed in this Subparagraph shall be a 
cage with the following minimum dimen- 
sions and horizontal areas: 
Animal 
Cougar 
Bobcat, Otter 

Raccoon, Fox, Woodchuck 
Opossum, Skunk, Rabbit 
Squirrel 



Dimensions in 
Length Width 


Feet 
Height 


is 
10 

s 


9 

5 
4 


9 
5 

4 



459 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



6 3 3 

4 2 2 

Square Foot 
Per Animal 
162 
50 
32 
18 
8 
For animals not listed above or mentioned 
elsewhere in this Rule, single animal enclo- 
sures shall be a cage with one horizontal di- 
mension being at least four times the 
nose-rump length of the animal and the 
other horizontal dimension being at least 
twice the nose-rump length of the animal. 
The vertical dimensions shall be at least 
twice the nose-rump length of the animal. 
Under no circumstances shall a cage be less 
than four feet by two feet by two feet. 

For multiple animal enclosures, the mini- 
mum area of horizontal space shall be de- 
termined by multiplying the required square 
footage for a single animal by a factor of 1.5 
for one additional animal and the result by 
the same factor, successively, for each addi- 
tional animal The vertical dimension for 
multiple animal enclosures shall remain the 
same as for single animal enclosures. 

The young of any animal may be kept 
with the parent in a single-animal enclosure 
only until weaning. After weaning, if the 
animals are kept together, the requirements 
for multiple-animal enclosures must be met. 
(2) Sanitation and Care. Fresh food shall be 
provided daily, and clean water shall be 
available at all times. An effective pro- 
gram for the control of insects, ectopara- 
sites, disease, and odor shall be established 
and maintained. 

Statutory Authority G.S. 19A-1I; 113-134; 113- 
272.5. 



technical advice - diroctod toward improvomont ef 
their op e rations and- complianc e with- thoso rc - gu 
lationo. 

Statutory Authority G.S. 113-134; 113-273. 

SECTION .0800 - FALCONRY 

.0809 MARKING 

(a) Inventory. Within W days following the 

^iilx^iti^^a ^^^^^ j-vi 4*^^^ ^^^^A^i*i ii i !, in i *** l *"■ * * * •> Li J. Imii 

tTTvUTTTTT UUIV KJl LlilU UUV I IU1I U f VI T ^^^TT.H_FII IO_f TttTTTtT 

ft raptor ef raptors within this state, e xc e pt these 
held fef sciontific, zoological purpooos, ef reha 
bilitation purposes as providod fef through fed- 
eral permit, shall submit te the commission a» 
inventory with descriptions ef all raptors » his 
possession, whothor ef Ret such porson intonds 
te apply fef » falconry permit. 

(e) (aj Markers. Each raptor held within this 
state, other than those held for scientific, zoo- 
logical purposes, or rehabilitation purposes as 
provided for through federal permit, shall be af- 
fixed with a numbered, non-reusable marker 
supplied by the commission. After the effective 
date of this Section, before any unmarked raptor 
is acquired in this state, an appropriate marker 
must be first acquired and attached to the raptor 
immediately upon acquisition. A written appli- 
cation is required to obtain any such marker. 
Upon issuing any such marker, the executive di- 
rector may impose such conditions on the 
method of acquisition or taking such unmarked 
raptor, the species to be taken, and the location 
in which the same is permitted to be taken as he 
may deem appropriate for the conservation of 
wild raptor populations in this state. 

fe) (b) Counterfeiting or Alteration. No person 
shall counterfeit, alter, or deface any marker re- 
quired by this Rule, except that permittees may 
remove the rear tabs on markers and may 
smooth any surface imperfections provided the 
integrity of the markers and numbering are not 
affected. 



SECTION .0700 - FISH PROPAGATION 

.0706 INSPECTION OF FACILITIES 

(a) Inspection. Agents of the Wildlife Re- 
sources Commission are authorized to make pe- 
riodic inspection of the facilities and stock of 
each operation licensed under this Section and 
located within the state. Every person engaged 
in the business of fish propagation shall permit 
such inspection at any reasonable time. Within 
the limits ef personnel available fef the purpose, 
the Wildlife Resources Commission shall te- 
spond te r e qu e sts ef licensed frsh propagators fef 
inspection ef their facilities aftd- stock and- fef 



Authority G.S. 
C.F.R. 21.29. 



113-134; 113-270.3(b)(5); 50 



SECTION .0900 - GAME BIRD PROPAGATORS 

.0901 GAME BIRD PROPAGATION LICENSE 

(a) License Requir e d. It « unlawful fef aey- 
individual, firm, association, ef corporation te 
propagato upland game birds ef migratory game 
birds ef te have m possession aey such birds, ef 
thoir eggs, fef the purpose ef game bifd pro pa 
gation without fifst obtaining a license te de se 
from the North Carolina Wildlif e Resources 
Commission. 



NORTH CAROLINA REGISTER 



460 



PROPOSED RULES 



(4h Limitations The game bird propagation 
license authorizes the purchase, possession, pro- 
pagation, sale, and transportation of propagated 
upland game birds and migratory game birds, and 
their eggs in accordance with the other rules of 
this Section, subject to the following limitations 
and conditions: 

(1) No wild turkey may be propagated or sold 
for the purpose of restocking, and it is 
unlawful to release any wild turkey to the 
wild for any purpose or to allow any wild 
turkey to range free; 

(2) No ruffed grouse or wild turkey may be 
sold for the purpose of consumption as 
food; 

(3) The sale of dead pen-raised quail for food 
is governed by the regulations of the 
North Carolina Department of Agricul- 
ture; 

(4) The possession, sale, and transfer of mi- 
gratory game birds is subject to additional 
requirements contained in Title 50 of the 
Code of Federal Regulations. 

Authority G.S. 106-549.94; 113-134: 113-273; 50 
C.F.R.. Part 21. 



No 



otice is hereby given in accordance with G.S. 
150B-12 that the Wildlife Resources Commission 
intends to amend regulation cited as 15 XCAC 
10B .0115. 

1 he proposed effective date of this action is 
March 1, 19SS. 



Th 



he public hearing will be conducted at 7:30 
p.m. on November 17, 19S7 at Courtroom No. 1 
of the Transylvania County Courthouse in Bre- 
vard. North Carolina. 



Co 



omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. In addition, the record of hearing will 
be open for receipt of written comments from Oc- 
tober 19. 198". to 5:00 p.m. on November 19, 
1987. Such written comments must be delivered 
or mailed to the Wildlife Resources Commission, 
5/2 N. Salisbury St., Raleigh, NC 2761 1. 

SUBCHAPTER 10B - HUNTING AND 
TRAPPING 

SECTION .0100 - GENERAL REGULATIONS 



fore sunrise, intentionally shine a light upon a 
deer or intentionally sweep a light in search of 
deer in the indicated portions of the following 
counties: 

(36) Transylvania » entire county; 

(46} (37) Union -- entire county; 

(42} (38) Washington — entire county; 

(4S} (39) Watauga -- entire county; 

(39) (40) Wilkes -- entire county; 

f4Q} (41 ) Yadkin -- entire county; 

f44} (42) Yancey — entire county. 

Statutory Authority G.S. 113-134; 113-291.1. 

TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

IS otice is hereby given in accordance with G.S. 
I50B-/2 that The North Carolina State Board of 
Dental Examiners intends to adopt and amend 
regulations cited as 21 NCAC I6B .0303; .0305; 
16C .0303; .0305; 16M .0001 - .0002; 16N .0304; 
.0308; .0503 - .0505; .0601; .0603; .0605; 16Q 
.000/ - .0006. 



Th 



he proposed effective date of this action is 
March 1, 1988. 



Th 



he public hearing will be conducted at 10:00 
a.m. on November 14. 1987 at Offices of the 
Board of Dental Examiners, Suite 221 , Koger 
Executive Center, Chatham Building. 3716 Na- 
tional Drive, Raleigh, N.C. 

C omment Procedures: Persons wishing to pres- 
ent oral data, views or arguments on a proposed 
rule may file a notice with the Board at least ten 
days prior to the public hearing. Any person may 
also file a written submission containing data, 
comments or arguments at any time up until ten 
days after the hearing. 

CHAPTER 16 - DENTAL EXAMINERS 

SUBCHAPTER I6B - LICENSURE 
EXAMINATION: DENTISTS 

SECTION .0300 - APPLICATION 

.0303 EXAMINATION FEE 

A fee of sovonty fiv e dollars ($75.00) two hun- 
dred dollars ($200.00) for each examination or 
re-examination must accompany the application. 
Such fee is non-refundable. 



.0115 SHINING LIGHTS IN DEER AREAS 

(c) No person shall, between the hours of 
one-half hour after sunset and one-half hour be- 



Statutory Authority G.S. 90-28; 90-233. 
.0305 TIME FOR FILING 



461 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



The completed application, fee, photographs, 
pre-dental college and dental college transcripts 
must be in the hands of the secretary at least 
thirty sixty days prior to the date of examination. 
Dental college transcripts may be incomplete for 
those still in college but must be sent in before 
the examination date. All data received by the 
board concerning the applicant will be part of the 
application and will be retained as part of the re- 
cord. 



Statutory Authority G.S. 90-28; 
90-224. 



90-48: 90-223; 



SUBCHAPTER 16C - LICENSURE 
EXAMINATION: DENTAL HYGIENIST 

SECTION .0300 - APPLICATION 

.0303 EXAMINATION FEE 

A fee of fifty dollars ($50.00) one hundred 
twenty-five dollars ($125.00) for each examina- 
tion (or re-examination) must accompany the 
application which fee is non-refundable. 

Statutory Authority G.S. 90-28; 90-233. 

.0305 TIME FOR FILING 

The completed application, fee, photographs, 
high school and college transcripts, and two let- 
ters of recommendation must be in the hands of 
the secretary at least thirty sixty days prior to the 
date of the examination. College transcripts may 
be incomplete for those still in college, but must 
be sent in before the examination date. All data 
received by the board concerning the applicant 
becomes a part of the required application and 
will be retained as part of the record. 

Statutory Authority G.S. 90-28; 90-48; 90-223; 
90-224. 

SUBCHAPTER 16M - FEES PAYABLE 

.0001 DENTISTS 

(a) The following fees shall be payable to the 
North Carolina State Board of Dental Examin- 
ers: 

Application for general dentistry exam- 
ination $75.00 $200.00 



(1) 
(2) 
(3) 

(4) 



Application for instructor's license and 
examination or renewal $50.00 $75 00 
G e n e ral dentistry aft4 instructor's lic e ns e 
renewal Application for provisional li^ 
cense $50.QO $75.00 

Application for provisional licensure) - 
g e n e ral dentistry intern permit or renewal 
thereof U^m%15. 00 



(5) Application fef intern permit et renewal 
thereof Certificate of license to a resident 
dentist desiring to change to another state 
or territory $5ftQQ $25.00 

(6) Certificate ef liconoo te a resident dontiot 

dosiring a chang e te- anothor stat e &f tef- 
ritory License issued to a practitioner of 
another state or territory to practice in this 
State SASm S 125.00 

(7) Licensure upon clinical e xamination ef 
practitioner ef anothor stato Rein- 
statement of license to resume practice 
$3540 $ 125.00 

f8) Reinstatement ef a liconso te- resumo 
practice $75.00 
(b) The fee payable to the North Carolina State 
Board of Dental Examiners for each general 
dentistry license renewal shall be annually fixed 
by the board. Each year the board shall give 
written notice of the amount of the renewal fee 
to each dentist licensed to practice in this state 
by mailing such notice no later than November 
30 to the last address of record for each dentist. 
Said renewal fee shall not exceed seventy-five 
dollars ($75.00). 

Statutory Authority G.S. 90-28; 90-233. 

.0002 DENTAL HYGIENISTS 

(a) The following fees shall be payable to the 
North Carolina State Board of Dental Examin- 
ers: 

(1) Application for examination $50.00 
$125.00 

(2) Renewal certificat e Restoration of a license 

$35.00 $60.00 

(3) Restoration ef liconso Application for pro- 

visional licensure $35.00 $60.00 

(4) Application ft>f provisional lic e nsur e Cer- 

tificate to a resident dental hygienist de- 
siring to change to another state or 
temtorv $34^0 $25.00 
(4) C e rtificat e te a resident dental hygioniot 
dosiring te change te another state ©f tw- 
atefy $15.00 

(b) The fee payable to the North Carolina State 
Board of Dental Examiners for each dental hy- 
gienist renewal certificate shall be annually fixed 
by the board. Each year the board shall give 
written notice of the amount of said renewal fee 
to each dental hvgienist licensed to practice in 
this state by mailing such notice no later than 
November 30 to the last address of record for 
each such licensed dental hvgienist. Said renewal 
fee shall not exceed sixty dollars ($60.00). 

Statutory Authority G.S. 90-28; 90-233. 



NORTH CAROLINA REGISTER 



462 



PROPOSED RULES 



SUBCHAPTER I6N - RULEMAKING AND 
ADMINISTRATIVE HEARING PROCEDURES 

SECTION .0300 - RULEMAKING HEARINGS 

.0304 WRITTEN SUBMISSIONS 

Any person may file a written submission con- 
taining data, comments or arguments, after pub- 
lication of a rulemaking notice and within 30 
days after the hearing, unless a different period 
ha* been proscribed m the notice granted upon 
request. These written comments should be sent 
to the board's office. They should clearly state 
the rule(s) or proposed rule(s) to which such 
comments are addressed. 

Statutory Authority G.S. 150B-38. 

.0308 EMERGENCY RULES 

Wh e n e ver reasons ef imminent peril Whenever 
a serious and unforseeable threat to the public 
health, safety or welfare require requires the 
adoption of an emergency rule, the Board of 
Dental Examiners will issue such notice, written, 
telegraphic, telephonic, or other, and allow such 
comments, oral or written as time permits. 

Statutory Authority G.S. I50B-38. 

SECTION .0500 - ADMINISTRATIVE HEARING 
PROCEDURES 

.0503 GRANTING OR DENYING 
HEARING REQUESTS 

(a) The board will decide whether to grant a 
request for a hearing. 

(b) The denial of a request for a hearing will be 
issued immediately upon decision, and in no case 
later than 60 days after the submission of the re- 
quest. Such denial shall contain a statement of 
the reasons leading the board to deny the request 
and shall contain a notice advising the requesting 
party of their right to file a petition for hearing 
at the Office of Administrative 1 [carinas as pro- 
vided in G.S. 150B-23(a). 

(c) Approval of a request for a hearing will be 
signified by the issuing of a notice as required by 
G.S. 150B-38(b) and explained in Rule .0504 of 
this Section. 

Statutory Authority G.S. 1 SOB- 38. 

.0504 NOTICE OF HEARING 

In addition to the items specified in G.S. 
I50B-38 (_b_i to be included in the notice, notices 
of administrative hearings of the board: 

(1) shall give the name, position, address and 
telephone number of a person at the office 



of the board to contact for further informa- 
tion or discussion; 

(2) may give notice of the date and place for a 
prehearing conference, if any; 

(3) may include any other information deemed 
relevant to informing the parties as to the 
procedure of the hearing. 

Statutory Authority G.S. 150B-38. 

.0505 WHO SHALL HEAR CONTESTED 
CASES 

AH administrative hearings VriH be conducted 
by a majority ef- the members ef the board with 
voting authority eg a hearing officer. All admin- 
istrative hearings will be conducted bv the board, 
a panel consisting of a majority of board mem- 
bers, or an administrative law judge designated 
to hear the case pursuant to G.S. 150B-40(e). 

Statutory Authority G.S. I50B-38. 

SECTION .0600 - ADMINISTRATIVE 

HEARINGS: 

DECISIONS: RELATED RIGHTS AND 

PROCEDURES 

.0601 FAILURE TO APPEAR 

Should a party fail to appear at a scheduled 
hearing, the board, hearing panel, singl e board 
member, &f its designated hearing officer or the 
designated administrative law judge may proceed 
with the hearing in the party's absence, or it may 
order a continuance, adjournment or like dispo- 
sition, ef it may- dismiss the proceeding. 

Statutory Authority G.S. I50B-38. 

.0603 SUBPOENAS 

(h4 Promptly aftef the clos e t»f swh hearing, a 
majority ef the board members with voting a*t- 
thority, Bf a hearing officer will R*le ©«■ the chul 
leng e aa4 issu e a written decision. A copy ef the 
decision will be issu e d te- ah parti e s aft4 mad e a 
part- ef the record. 

(h) Promptly after the close of such hearing, 
the Hoard, a hearing panel, or the designated ad- 
ministrative law judge will rule on the challenge 
and issue a written decision. A copy ot the de- 
cision will be issued to all parties and made a part 
of the record. 



Statutory Authority G.S. 150B-38. 

.0605 PROPOSALS FOR DECISIONS 

(a) When a hearing officer When an adminis- 
trative law judge, sitting pursuant to G.S. 



l50B-40(c) conducts a hearing, a "proposal for 
decision" shall be rendered. Any party may file 



463 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



written exceptions to this "proposal for 
decision" and submit his own proposed findings 
of fact and conclusions of law. The exceptions 
and proposals must be received within 10 days 
after the party has received the "proposal for de- 
cision" as drafted by the hearing officer, ef the 
board, administrative law judge. 

(b) Any exceptions to the procedure during the 
hearing, the handling of the hearing by the h e ar 
iftg officer, uinglo board member, administrative 
law judge, panel rulings on evidence, or any other 
matters, must be written and refer specifically to 
pages of the record or otherwise precisely identify 
the occurrence to which exception is taken. The 
exceptions must be filed with the Board within 
10 days of the receipt of the proposal for deci- 
sion. The title of such written exceptions should 
bear the notation: EXCEPTIONS TO THE 
PROCEEDINGS IN THE CASE OF (name of 
case). 

(c) Any party may present oral argument to the 
Board upon request. The request must be in- 
cluded with the written exceptions. 

(d) Upon receipt of requests for further oral 
argument, notice will be issued promptly to all 
parties designating time and place for such oral 
argument. 

(e) The board will direct whatever corrective 
action, if any, may be deemed advisable in light 
of the exceptions. Any decision made will be a 
part of the record and a copy thereof given to all 
parties. The board will issue its final agency de- 
cision giving due consideration to the proposal 
for decision and the exceptions and arguments 
presented by the parties. This decision wiJJ be 
the final agency decision for the right to judicial 
review. 

Statutory Authority G.S. 150B-38. 

SUBCHAPTER 16Q - PUBLIC RECORDS 

.0001 PURPOSE OF RULE 

The board recognizes the importance of public 
access to public records in promoting the ac- 
countability of government and the informed 
participation in the governing process by the 
people. By the same token, the board recognizes 
the potential damage to licensees in releasing in- 
formation about complaints prior to investi- 
gation and resolution. This Rule is intended to 
guarantee the public's right of access to public 
records while protecting the privacy of licensees. 



(a) "Public records" include all documentary 
material, regardless of physical form, which the 
board makes or receives pursuant to law, or 
which the board uses in connection with the 
transaction of public business. "Public records" 
do not include privileged records or confidential 
records. 

(b) "Privileged records" include all records spe- 
cifically exempted from disclosure by statute or 
common law privilege. 

(c) "Confidential records" include all records 
which the board makes, receives or uses in con- 
nection with allegations against a licensee, or any 
investigation into allegations against a licensee, 
which may result in disciplinary action or crimi- 
nal charges. Notwithstanding the foregoing, 
once disciplinary action is commenced by notice 
to the licensee, or once criminal charges are 
brought by indictment or otherwise, the records 
involved lose their confidential status. 

Statutory Authority G.S. 90-28; 90-223; 132-1.1; 
132-6; 150B-11(I). 

.0003 ACCESS TO PUBLIC RECORDS 

(a) The executive secretary is the custodian of 
the records of the State Board of Dental Exam- 
iners. 

(b) Any person may inspect any public record 
of the board at the offices of the board by making 
a request of the custodian to receive the public 
records sought to be inspected. 

(1) The custodian shall provide adequate 
space during office hours for all persons 
making a reasonable request to inspect the 
public records. 

(2) The custodian shall supervise the in- 
spection of the records in order to protect 
the public records and prevent disruption 
of the operations of the board. 

(c) Upon request of any person, the custodian 
shall provide a copy of the public record to the 
person requesting the record at the cost of twenty 
cents ($0.20) per page. 

( 1 ) If the public record is of a form prohibiting 
ready copying, custodian may, upon con- 
ditions satisfactory to the custodian, allow 
the person to remove the public record 
from the board's offices for the sole pur- 
pose of having the public record re- 
produced. 



Statutory Authority G.S. 
ISOB-ll(l). 

.0002 DEFINITIONS 



90-28; 90-223; 132-6; 



Statutory Authority G.S. 90-2& 
150B-U(1). 



90-223; 132-6; 



.0004 ACCESS TO PRIVILEGED RECORDS 

(a) If a person requests to inspect a record 
which the custodian considers to be a privileged 



NORTH CAROLINA REGISTER 



464 



PROPOSED RULES 



record, the custodian shall deny the request to 
the person to inspect the record. 

(b) A person denied access to a privileged re- 
cord may petition the board to allow inspection 
of the record. 

(c) Upon receipt of such petition, the board 
shall seek the advice of counsel as to the privi- 
leged status of the record. 

(1) If counsel advises the board that the record 
is privileged, inspection of the record may 
be granted only upon a vote by the ma- 
jority of the board to waive the privilege. 

(2) If counsel advises the board that the record 
is not privileged, the custodian shall re- 
lease the record, not sooner than 20 days 
after receipt of counsel's opinion, unless a 
majority of the board votes to reject the 
opinion of counsel and to refuse to allow 
inspection of the document. 

Statutory Authority G.S. 90-28; 90-223; 132-1.1; 
132-6; I50B-11(1). 

.0005 ACCESS TO CONFIDENTIAL RECORDS 

(a) If a person requests to inspect a record 
which the custodian considers to be a confiden- 
tial record, the custodian shall deny the request 
unless the custodian is convinced that: 

( 1 ) Inspection of the record by the person 
seeking the inspection will not result in an 
unwarranted invasion of the licensee's 
privacy; and 

(2) That inspection of the record by the per- 
son seeking the inspection will not inter- 
fere in any way with an ongoing 
investigation by the board. 

(b) A person denied access to a confidential 
record may petition the hoard to allow inspection 
of the record. 

(c) Within 20 days of the receipt of the petition, 
the board may vote on the petition. If the board 
fails to act within 20 days of the receipt of the 
petition, the petition shall be deemed to have 
been denied. 

Statutory Authority G.S. 90-28; 90-223; 132-6; 
150B-ll(l). 

.0006 AUTHORITY OF CUSTODIAN 

The custodian of the records of the board shall 
have the sole authority, subject to the provisions 
of the foregoing Rules, to allow public access to 
board records. No board member of employee, 
agent, attorney or investigator for the board may 
allow inspection of board records, or discuss the 
content of board records, without the knowledge 
and approval of the custodian. 



Statutory Authority G.S. 90-28; 90-223; 132-6; 
ISOB-ll(l). 

TITLE 25 - OFFICE OF STATE 
PERSONNEL 

IS otice is hereby given in accordance with G.S. 
1 SOB- 12 that the Office of State Personnel/ State 
Personnel Commission intends to amend regu- 
lations cited as 25 NCAC IC .0404; 25 NCAC 1H 
.0602; .0604; .0609; repeal regulation 25 NCAC 
ID .0110; and adopt regulations 25 NCAC 1H 
.0618 - .0628. 

1 he proposed effective dale of this action is Fe- 
bruary 1, 1988. 

1 he public hearing will be conducted at 9:00 
a.m. on December 14, 1987 at 101 West Peace 
Street, Raleigh, N. C. 27611. 



Co 



omment Procedures: Interested persons may 
present statements orally or in writing at the 
hearing or in writing by mail addressed to: Drake 
Maynard, Office of State Personnel. 116 West 
Jones Street, Raleigh, N.C. 27611. 

CHAPTER 1 - OFFICE OF STATE PERSONNEL 

SUBCHAPTER IC - PERSONNEL 
ADMINISTRATION 

SECTION .0400 - APPOINTMENT 

.0404 PROBATIONARY APPOINTMENTS 

Individuals receiving original appointments to 
permanent positions must serve a probationary 
period. The probationary period is an extension 
of the selection process and provides the time for 
effective adjustment of the new employee or 
elimination of those whose performance will not 
meet acceptable standards. The maximum 
length of the probationary period shall be not less 
than three nor more than nine months of either 
full-time or part-time employment. Within 90 
days of employment, prior to the granting of 
permanent status, credentials and application in- 
formation provided bv the employee must be 
verified. Agencies shall inform applicants in 
writing that credentials must be verified pnor to 
the granting of permanent status. 

Statutory Authority G.S. 96-29; 126-4; 126-30. 

SUBCHAPTER ID - COMPENSATION 

SECTION .0100 - ADMINISTRATION OF THE 
PAY PLAN 



465 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



.0110 POLICY (REPEALED) 

Statutory Authority G.S. 126-4. 

SUBCHAPTER III - RECRUITMENT AND 
SELECTION 

SECTION .0600 - GENERAL PROVISIONS 

.0602 POSTING AND ANNOUNCEMENT 
OF VACANCIES 

(a) Vacant positions to be filled in State Gov- 
ernment wiH shall be publicized by the agency 
having the vacancy to permit an open opportu- 
nity for all interested employees and applicants 
to apply. The term "agency" as used in this 
Subsection includes all state departments, insti- 
tutions, commissions^ and boards. 



(b) Vacancies which wiU shall be filled from 
within the agency workforce will be prominently 
posted i» a» area- known to employees, a»4 v4U 
be described » a» announcement which includes 
at- minimum the title, salary ran go, key duties, 
knowledge a&4 sk-iH- requirements, minimum ed- 
ucation a«4 experienc e standard, a«4 contact 
person fef each position be be filled. A» excep 



fies to this posting requirement will be permis 
sibl e wh e r e a formal, preexisting "und e rstudy" 
arrangement has been established bv manage 



ment. shall be prominently posted in at least the 
following locations: 

( 1 ) The personnel office of the agency having 
the vacancy; 

(2) The particular work unit of the agency 
having the vacancy. 

(c) A»y vacancy fe* which a» agency wishes to 
consider applicants from within toe overall state 
government work forc e shall be listed by aft- 
nouncement, as defined m tfeis Piulo, wito the 
Counseling ae4 Career Support Unit ef the Of- 
fice &£ Stat e Personnel. Such vacancies shall 
have a» application p e riod ef ne4 less than seven 
work days. If the decision is made, initially or 
at any time a vacancy remains open, to receive 
applicants from within the overall state govern- 
ment workforce, that vacancy shall be listed with 
the Office of State Personnel for the purpose of 
informing current state employees of the open- 
ing. Such vacancies shall have an application 
period of not less than seven work days from the 
time the listing is received bv the Office of State 
Personnel. Each vacancy for internal posting or 
listing with the Office of State Personnel will be 



foregoing posting requirements shall not apply 
to: 

(1) Vacancies which must be used to meet 
management necessity, for which an 
agency will not openly recruit. Examples 
include vacancies committed to a budget 
reduction, vacancies used for disciplinary 
transfers or demotions, use of an existing 
vacancy to avoid reduction in force, 
transfer of an employee to an existing 
opening to avoid the threat of bodily 
harm, and the promotion of an employee 
into an opening under a formal, pre-ex- 
isting "understudy arrangement". 

(2) Vacancies for positions which have been 
designated policy-making exempt under 
G.S. 126- 5(d). 

(3) Vacancies which must be filled imme- 
diately to prevent work stoppage in con- 
stant demand situations, or to protect the 
public health, safety, or security. 

(4) Vacancies which are not tilled bv open 
recruitment, but rather bv specific and 
targeted recruitment of special groups for 
the Careers in Government, Model Co- 
operative Education and state government 
intern programs. 

(J} The Office of State Personnel may withhold 
approval for an agency to fill a job vacancy if the 
agency cannot prove to the satisfaction of the 
Office of State Personnel that it complied with 
these posting requirements. If any agency hires 
any person in violation of these posting require- 
ments, and it is determined by the Office of State 
Personnel that the employment of the person 
hired must be discontinued as a result of the 
posting violation, the agency shall pay such per- 
son for the work performed during the period of 
time between his her initial employment and se- 
paration. 

Statutory Authority G.S. 96-29; 126-4(4); 
126-5 (d); 126-7.1. 

.0604 APPLICANT INFORMATION 
AND APPLICATION 

(c) Each agency shall be responsible for inves- 
tigating the accuracy of statements and the qual 
rty b( references data contained in each 
individual's application, including the verification 
of academic and professional credentials. The 
agency Mull inform the applicant m writing that 
credentials must be verified within 90 days and 



described in an announcement which includes at pnor to the .granting of permanent status. 



minimum the title, salary range, key duties. 



knowledge and skill requirements, minimum ed- 
ucation and experience standard, the application 
period and the appropriate contact person, fhe 



Statutory' Authority G.S. 126-4(4); 126-30. 
.0609 FINAL COMMITMENTS 



NORTH CAROLINA REGISTER 



466 



PROPOSED RULES 



(a) An appointment may be made only if a 
classified and budgeted vacancy exists in the po- 
sition complement authorized for the agency. A 
commitment should not be made to an employee 
or an applicant until final certification has been 
obtained through approval by the Office of State 
Personnel. Questions about funds or other fiscal 
matters should be directed to the Office of State 
Budget and Management. 

(b) In order for the Office of State Personnel 
to certify an appointment, the Office of State 
Personnel must have a copy of the application 
for employment which accompanies the Forms 
PD ^ 105. The application must be completed 
in every detail and written in blue black ink or 
typed. 

Statutory Authority G.S. 126-4(4); 126-30. 

.0618 VERIFICATION OF CREDENTIALS 

The employing authority within each depart- 
ment, university, board or commission shall ver- 
ify the validity of credentials and the accuracy of 
data contained in each individual application 
within 90 days from the date of the employee's 
initial employment. 

Statutory Authority G.S. 126-4; 126-30. 

.0619 COMPLETION OF APPLICATIONS 

Applications for those persons who have been 
offered and have accepted employment must be 
completed in every detail; applications must be 
completed in black/blue ink or typed or the ap- 
plication shall be returned to the agency for 
compliance. A copy of the original application 
for employment shall be forwarded to the Office 
of State Personnel with the appointing Forms 
PD-105. 

Statutory Authority G.S. 126-4; 126-30. 

.0620 VERIFICATION PROCEDLRES 

The following procedures shall be followed in 
order to insure the accuracy and veracity of the 
verification process: 
(1) Agencies are responsible for and shall re- 
quest from issuing institutions, wntten ver- 
ification of applicants' dates of enrollment, 
degrees awarded, professional licenses, pro- 
fessional registrations and professional cer- 
tifications. The origmal(s) of verification 
response(s) shall be made a part of the 
agency personnel record and a copy(ies) sent 
to the Office of State Personnel with the 
applicant's social security number included 
on the document(s). WTien credentials are 
being verified on a "post-hire" basis, agen- 



cies will expedite this activity to meet the 90 
day deadline. 

(2) Methods of acceptable verification are: 

(a) Telephone Contact - To expedite the hir- 
ing process, agency staff may telephone 
the educational institution to verify dates 
of enrollment and the degree awarded. 
The same procedure may be used for 
professional licensure/ registration/ certif- 
ication. In each case a written follow-up 
request shall be made to insure that writ- 
ten verifications are included in personnel 
records. 

(b) Requests for Verification Letter - These 
requests may be sent to educational insti- 
tutions or to professional licensure, regis- 
tration, and or certification officials to 
verify claimed credentials. 

(3) Agencies may request transcripts for verifi- 
cation of credentials, course content, or 
grades. If transcripts are used for verifica- 
tion of credentials, the original shall be kept 
for the agency personnel record and a copy 
sent to the Office of State Personnel with 
social security number included. If used for 
course content and grades only, transcripts 
shall remain with the agency. 

Statutory Authority G.S. 126-4; 126-30. 

.0621 AGENCY CERTIFICATION 

Each agency must certify on the Form PD-107 
that academic and professional credentials have 
been or will be verified in accordance with stat- 
utes, policies, and procedures. Lack of such 
certification will require that the forms imple- 
menting the hiring process be placed in suspense 
until the proper certification is supplied. 

Statutory Authority G.S. 126-4; 126-30. 

.0622 APPLICANT DISQLALIFICATION 

When credentials or work history falsification 
cases are discovered prior to employment, the 
applicant must be disqualified from consideration 
for the position in question. 

Statutory Authority G.S. 126-4; 126-30. 

.0623 DISCIPLINARY ACTION 

When credential or work history' falsification is 
discovered after employment by the state, disci- 
plinary action is required and shall be adminis- 
tered in accordance with the following criteria: 
(1) If an employee was determined to be qual- 
ified and was selected for a position based 
on fraudulent work experience, educational, 
registration, licensure or certification infor- 



46" 



XORTH CAROLINA REGISTER 



PROPOSED RULES 



mation which was a requirement of the po- 
sition, the employee is to be dismissed, 
regardless of length of service. 
(2) In all other post-hire discovery' cases of false 
or misleading information, disciplinary ac- 
tion will be taken, but the severity of such 
action shall be at the discretion of the agency 
head. The actions may include: dismissal; 
demotion; reduction in pay; written repri- 
mand. 
The agency head's decision, while discretionary, 
should consider: sensitivity of the agency's mis- 
sion; sensitivity of the employee's position; effect 
of the false information on the hiring decision; 
advantage gained by the employee over other 
applicants; effect of the false information on the 
starting salary; and the advantage gained by em- 
ployee in subsequent promotion and salary in- 
creases. Job performance shall not be considered 
in such cases, nor can decisions be made on the 
basis of race, creed, color, religion, national ori- 
gin, sex, age, handicapped condition, or political 
affiliations. 

Statutory Authority G.S. 126-4; 126-30. 

.0624 DISMISSAL 

Dismissal on the basis of knowingly and will- 
fully providing false information on a state em- 
ployment application, or knowingly and willfully 
concealing a dishonorable military discharge shall 
be accomplished in accordance with the State 
Personnel Commission's procedures on disci- 
pline and dismissal. Providing false information 
on an employment application or concealing in- 
formation shall be considered personal conduct 
for the purposes of implementing the dismissal 
procedure, except that two weeks' pay in lieu of 
notice may be given upon the recommendation 
of the agency and the approval of the Office of 
State Personnel. Only employees who are per- 
manent, as that term is defined in G.S. 126-39, 
are entitled to the procedures for dismissal set out 
in the State Personnel Commission's rules on 
dismissal. 

Statutory Authority G.S. 126-4; 120-30; 126-39. 

0625 PROMOTIONAL PRIORITY 

CONSIDERATION FOR CL'RRENT 
EMPLOYEES 

(a) A promotional priority consideration shall 
be provided by all agencies to all current state 
employees who have achieved permanent status, 
as that term is defined in G.S. 126-39. 

(b) If a current state employee applies and is 
qualified for another state position of a higher 
level, and has substantially equal qualifications 



as those of the highest ranking applicant who is 
not a state employee, the state employee shall 
receive the job offer. 

(c) "Qualifications" within the meaning of this 
Rule shall include training and education, years 
of related work experience, and other skills, 
knowledge, and abilities demonstrated in the se- 
lection process which bear a reasonable func- 
tional relationship to the requirements of the 
position applied for. 

(d) "Substantially equal qualifications" occur 
when the employer cannot make a reasonable 
determination that the job-related qualifications 
held by one person are significantly better suited 
for the position than the job-related qualifica- 
tions held by another person. 

Statutory Authority G.S. 126-4; 126-7.1. 

.0626 RELATIONSHIP TO OTHER 
EMPLOYMENT PRIORITY 
CONSIDERATIONS 

(a) Policy-making exempt employees, employ- 
ees separated by reduction in force, employees 
disabled on the job - state employees separated 
from policy-making exempt jobs for reasons 
other than cause, state employees separated by 
reduction in force and on active priority reem- 
ployment status, and employees returning to 
state employment following a disability due to 
on-the-job injury are not considered outside ap- 
plicants for the purpose of the promotional pri- 
ority policy. Existing policy and statutory 
priorities which apply to these employees shall 
be afforded before the promotional priority for 
current state employees. 

(b) Affirmative Action Considerations - Affir- 
mative action policy requires that hiring authori- 
ties act affirmatively in minimizing or eliminating 
underrepresentations of women, minorities and 
handicapped persons throughout all levels of the 
state's workforce. Therefore, when promotional 
opportunities exist in occupational categories 
where there is an established underrepresentation 
of minorities, women, and handicapped persons, 
and the selection decision will be made from 
among applicants in the existing state workforce, 
hiring authonties shall consider and support 
these affirmative action needs as usual. The 
promotional priority for current employees only 
applies when the applicants being considered in- 
clude persons from outside state government. 
When the selection decision involves outside ap- 
plicants in addition to current state employees, 
and a current state employee has substantially 
equivalent qualifications as those of the highest 
ranking outside applicant who happens to be a 
member of the underrepresented group, the state 



NORTH CAROLINA REGISTER 



468 



PROPOSED RULES 



employee shall receive the job offer. However, 
affirmative recruitment efforts shall be taken, 
both internally and externally, to optimize the 
presence of well qualified persons from the un- 
derrepresented categories in the applicant pool. 

Statutory Authority G.S. 1 26-4; 126-7.1; 126-16. 

.0627 RIGHT OF APPEAL: DENIAL 

OF PRIORITY AND NON-POSTING 

A permanent state employee, as defined by G.S. 
126-39, who has reason to believe that pro- 
motion was denied due to the failure of an 
agency, department, or institution to post notice 
of a vacancy pursuant to G.S. 126-7. 1(a), or to 
afford priority as required by G.S. 126-7. 1(c), 
may appeal directly to the State Personnel Com- 
mission through the established contested case 
hearing procedure. 

Statutory Authority G.S. 126-7.1; 126-39; 150B, 
Article 3. 



.0628 RESOLUTION OF CONFLICT 
BETWEEN EMPLOYMENT 
PRIORITIES 

In the event that the applicant group includes 
both a qualified non-state employee veteran and 
a qualified current state employee with perma- 
nent status as defined by G.S. 126-39, who is 
seeking a promotional opportunity, the current 
state employee shall be offered the position if the 
appointing authority determines, consistent with 
the promotional priority policy, that the quali- 
fications of the veteran and the current state em- 
ployee are substantially equal. The same priority 
over any non-state employee applicant shall ap- 
ply to state employees separated from policy 
making exempt positions for reasons other than 
cause, state employees separated by reduction in 
force and on active priority reemployment status, 
and employees returning to state employment 
following a disability due to on the job injury. 

Statutory Authority G.S. 126-4; 126-7.1; 126-39. 



469 



NORTH CAROLINA REGISTER 



FINAL RULES 



W hen the text of any adopted rule differs 
from the text of that rule as proposed, upon 
request from the adopting agency, the text 
of the adopted rule will be published in this 
section. 

W hen the text of any adopted rule is iden- 
tical to the text of that as proposed, adoption 
of the rule will be noted in the "List of Rules 
Affected" and the text of the adopted rule 
will not be republished. 

/I dopted rules filed by the Departments of 
Correction, Revenue and Transportation are 
published in this section. These departments 
are not subject to the provisions of G.S. I50B, 
Article 2 requiring publication of proposed 
rules. 



TITLE 17 - DEPARTMENT OF REVENUE 

CHAPTER 5 - CORPORATE INCOME 
FRANCHISE TAX 

SUBCHAPTER SB - CORPORATE INCOME 
AND FRANCHISE TAX DIVISION 

SECTION .0100 - GENERAL INFORMATION 

.0104 INACTIVE CORPORATIONS 

A corporation that is inactive and without assets 
is subject annually to a minimum franchise tax. 
For franchise tax returns due before March 15, 
1987, the tax is ten dollars ($10.00). For fran- 
chise tax returns due on or after that date, the tax 
is twenty-five dollars ($25.00). A return is re- 
quired containing a statement of the status of the 
corporation. Failure to file this return and pay 
the minimum tax will result in suspension of the 
Articles of Incorporation or Certificate of Au- 
thority. Any corporation which intends to dis- 
solve or withdraw through suspension for 
nonpayment of franchise tax should indicate its 
intention in writing to the department. 

History Note: Statutory Authority G.S. 
105-114; 105-262; 
Eff February 1, 1976; 
Amended Eff. November I ', 1987. 

SUBCHAPTER SC - CORPORATE INCOME TAX 

SECTION .2000 - EXTENSION OF TIME FOR 
FILING RETURN 

2001 AUTOMATIC EXTENSION 



(a) A corporation will automatically be allowed 
an extension of time without filing an application 
of up to six months to file its return and pay its 
tax if the total amount of franchise tax and in- 
come tax for its taxable year is expected to be five 
hundred dollars ($500.00) or less, and it has an 
approved federal extension. However, in case the 
corporation needs additional time beyond the 
six-month period to file its return, it must follow 
the procedure below as if its expected franchise 
and income liability were over five hundred dol- 
lars ($500.00). A copy of the approved federal 
extension must be included with the corpo- 
ration's state return when it is filed. 

(b) A corporation which expects its total com- 
bined franchise tax and income tax liability to 
exceed five hundred dollars ($500.00) for the 
taxable year must file a completed application 
(Form CD-419) before the due date of the return 
and pay the required amount of franchise tax and 
income tax as provided below. 

Franchise Tax - One hundred percent of the 
amount of franchise tax expected to be due for 
the taxable year must be paid with the first ex- 
tension application filed. 

Income Tax - The amount of income tax paya- 
ble with the extension application is determined 
after deducting estimated tax payments made 
during the corporation's taxable year. Depend- 
ing upon the amount of additional time needed 
to file the return, the percentage of income tax 
that must be paid is as follows: 
Up to three months -Twenty-five percent 

of balance of estimated 
income tax liability 
less estimated tax 
payments. 
-Fifty percent of 
balance of estimated 
income tax liability 
less estimated tax 
payments. 
-Seventy-five percent 
of balance of estimated 
income tax liability 
less estimated tax 
payments. 
The corporation should complete Form CD- 
419 in duplicate, file the original copy with the 
corporate income and franchise tax division 
within 75 days following the close of its income 
year and attach the duplicate copy to its return 
when filed. 

An approved copy of the application will not 
be returned to the taxpayer. 

History Note; Statutory Authority G.S. 
105-262; 105-263; 
Eff. February 1, 1976; 



extension 



Up to six months 
extension 



Up to nine months 
extension 



NORTH CAROLINA REGISTER 



470 



FINAL RULES 



Amended Eff. November 1, 1987; 
October 23, 1977. 

.2002 APPLICATION FOR AN ADDITIONAL 
EXTENSION 

If an additional extension of time is needed to 
file a corporate franchise and income tax return, 
a request for the additional extension must be 
made before the original extension application 
expires. The appropriate percentage of franchise 
tax and/or income tax as prescribed in Section 
(b) of .2001 must be included with the additional 
extension application. This application will be 
approved only when, in the judgment of the sec- 
retary, good cause exists. A copy of this exten- 
sion application must be included with the return 
when it is filed. 

History Note: Statutory Authority G.S. 
105-263; 105-262; 
Eff. February 1, 1976; 
Amended Eff. November 1, 1987; 
October 23. 1977. 

TITLE 19A DEPARTMENT OF STATE 
TRANSPORTATION 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2B - HIGHWAY PLANNING 

SECTION .0200 - TRAFFIC ENGINEERING 

.0221 SERVICES SIGNS 

(a) State Rural Primary System. Signing for 
services shall be in conformance with the "Man- 
ual on Uniform Traffic Control Devices". Re- 
quests for signing for services should be directed 
to the highway division engineer having jurisdic- 
tion in the county in which the sign is proposed. 
If approved, services signing will be installed and 
maintained by the Department of Transporta- 
tion. The following general requirements shall 
be applied in determining the placement of ser- 
vice signs on the interstate or controlled access 
highways. 

(b) General Requirements for All Services. 
Any facility warranting signs must have a public 
telephone, which is a coin-operated telephone or 
a business telephone which is available for public 
use during all business hours. If there is an out- 
side coin-operated telephone in the immediate 
vicinity of the business (within the intersection 
area, at an adjacent business or across the road), 
the business is in compliance. A business phone 
at an adjacent business is not a public telephone 
for a particular applicant business. The maxi- 
mum distance that a "Gas" or "Diesel" service 
can be located from the facility shall not exceed 
one mile, with the maximum distances being 



three miles for "Food" and "Lodging", and five 
miles for "Camping", in either direction via on 
all-weather road. Said distances shall be meas- 
ured from the point on the interchange crossroad, 
coincident with the centerline of the facility route 
median, along the roadways to the respective 
motorist service. The point to be measured to 
for each business is a point on the roadway that 
is perpendicular to the corner of the nearest wall 
of the business to the interchange. The wall to 
be measured to shall be that of the main building 
or office. Walls of sheds (concession stands, 
storage buildings, separate restrooms, etc.) 
whether or not attached to the main building are 
not to be used for the purposes of measuring. 
If the office (main building) of a business is lo- 
cated more than 0.2 mile from a public road on 
a private road or drive, the distance to the office 
along the said drive road shall be included in the 
overall distance measured to determine whether 
or not the business qualifies for business signing. 
The office shall be presumed to be at the place 
where the services are provided. 

(1) Gas and Diesel and Associates Services. 
Criteria for erection of a Gas service sign 
and or a Diesel service sign shall include: 

(A) appropriate licensing as required by 
law; 

(B) vehicle services for fuel, motor oil, tire 
repair (by an employee) and water; 

(C) restroom facilities and drinking water 
suitable for public use; 

(D) an on-premise attendant to collect 
monies, make change, and make or ar- 
range for tire repairs; and 

(E) year-round operation at least 16 con- 
tinuous hours per day, 7 days a week. 

(2) Food. Criteria for erection of a Food 
service sign shall include: 

(A) appropriate licensing as required by 
law, and a permit to operate by the health 
department; 

(B) year-round operation at least 12 con- 
tinuous hours per day to serve three meals 
a day (sandwich type entrees may be 
considered a meal) (breakfast, lunch, sup- 
per), 7 days a week; 

(C) indoor seating for at least 20 persons; 
and 

(D) public restroom facilities. 

(3) Lodging. Criteria for erection of a Lodg- 
ing service sign shall include: 

(A) appropriate licensing as required by 
law, and a permit to operate'by the health 
department; 

(B) adequate sleeping accommodations 
consisting of a minimum of 10 units each, 
including bathroom and sleeping rooms; 



471 



.NORTH CAROLINA REGISTER 



FINAL RULES 



(C) off-street vehicle parking for each lodg- 
ing room for rent; and 

(D) year-round operation. 

(4) Camping. Criteria for erection of a 
Camping service sign shall include: 

(A) appropriate licensing as required by 
law, including meeting all state and 
county health and sanitation codes and 
having adequate water and sewer systems 
which have been duly inspected and ap- 
proved by the local health authority (the 
operator shall present evidence of such 
inspection and approval); 

(B) at least 10 campsites with accommo- 
dations for all types of travel-trailers, tents 
and camping vehicles; 

(C) adequate parking accommodations; 

(D) continuous operation, 7 days a week 
during business season; 

(E) removal or masking of said business 
sign by the Department during off sea- 
sons, if operated on a seasonal basis. 

(5) Phone. Signs may be posted for a phone 
location only in respect to outdoor tele- 
phone booths where service is available 
on a twenty-four hour basis. 

(6) Hospital. Hospital signs consist of the 
word "Hospital" along the main roadway 
and the blue "H" at the end of the ramp. 
The blue "H" is used to trailblaze from 
the ramp terminal to the hospital where 
needed. The intent of providing "Hospi- 
tal" signs along interstate or controlled 
access highways is to direct unfamiliar 
motorists to a hospital in case there is a 
need for emergency medical services. The 
blue "Hospital" sign is used on the inter- 
state or controlled access highways. 
These hospital signs shall be used only for 
hospitals equipped to handle emergency 
cases with a physician on duty 24 hours 
each day and within a practical distance 
from the interchange. A blue sign show- 
ing the name of the hospital at the end of 
the ramp along with the proper directional 
arrow may be provided. Trailblazer signs 
where necessary will mark the route to the 
hospital using the blue "H". Use of the 
name of the hospital on green directional 
signs along conventional (non-interstate 
or non-controlled access) type streets and 
roads when a traffic engineering investi- 
gation has shown they are needed may be 
permitted. These green directional signs 
apply only to those hospitals which do 
not provide the 24-hour emergency ser- 
vice. 

(7) Service signs will not be erected on non- 
controlled or partially controlled access 



facilities or at locations within or near 
municipalities where it is obvious to the 
motorist that services are available. 

(c) Tourist Information Center. Tourist in- 
formation center service signing may be approved 
and installed when the following conditions are 
met: 

(1) The motorist using the highway in a par- 
ticular direction must be able to leave and 
return to the highway via the same inter- 
change and continue in the same direction 
of travel. 

(2) The service must be located in a rest area 
on the freeway or within one mile of the 
interchange off ramp and on a direct route 
from the freeway. 

(3) Continuous operation for at least eight 
hours per day, seven days per week, and 
360 days per year. 

(4) At least one separate and trained attend- 
ant with knowledge of tourist facilities in 
the state, on duty to service visitors during 
all hours of operation. 

(5) The facility must have available at no 
charge to visitors complete information 
on tourist facilities in the state; such as 
lodging, auto service, food, medical, rec- 
reational, historical and scenic sites; and 
it must also be readily available when at- 
tendant is off duty. 

(6) Housed in a separated area from other 
facilities in an appropriate building to 
provide an area, heated in winter and 
cooled in summer, of not less than 625 
square feet of floor area for displays and 
lounge devoted for providing this service. 

(7) At least one 50 pocket rack for noncom- 
mercial public service materials and dis- 
plays. 

(8) Rest room faculties available at no cost 
to the visitor and designed for use by 
handicapped individuals. 

(9) Drinking water approved by appropriate 
local authority. 

(10) Public telephone designed for use by 
handicapped individuals. 

(11) Adequate off-street parking at no cost to 
the motorist. Must have curb cuts and 
ramps for the handicapped. 

(12) Any displays, literature, magazines, etc., 
that would be judged to be offensive to 
visitors with children must not be readily 
visible. 

(13) Designated facilities for pets. 

( 14) The name of the operating agency, com- 
munity, group or enterprise shall not ap- 
pear in the legend of any sign. 

(d) Removal of General Services Signs. 



NORTH CAROLINA REGISTER 



472 



FINAL RULES 



(1) If municipal limits are revised so that an 
interchange is totally within a munici- 
pality, then existing general services signs 
should remain in place so long as they are 
in a serviceable appearance and are not in 
need of refurbishing maintenance. When 
the signs are no longer serviceable they 
shall be removed. 

(2) When specific services (Logo) signing is 
installed along a section of Interstate 
roadway, then the existing general services 
signing shall be removed on that section 
of roadway. When general services signs 
exist on an Interstate roadway inside a 
municipality that does not qualify for 
specific services (Logo) signing, the gen- 
eral services signs may remain in place, 
except as covered in (1) above, until such 
time that all rural sections of the Interstate 
route adjacent to the municipality are 
covered, then the general services signs 
shall be removed. 

History Note: Statutory Authority G.S. 
136-18(5); 136-30; 136-128; 
Eff July 1, 1978; 
Amended Eff. November 1 , 1987; 
August 1. 1984; February, I, 1984. 

SUBCHAPTER 2E - MISCELLANEOUS 
OPERATIONS 

SECTION .0200 - OUTDOOR ADVERTISING 

.0219 ELIGIBILITY FOR PROGRAM 

Business signs may be permitted, provided said 
businesses comply with the following criteria and 
have a public telephone: 

(1) The individual business installation whose 
name, symbol or trademark appears on a 
business sign shall give wntten assurance of 
the business 's conformity with all applicable 
laws concerning the provision of public ac- 
commodations without regard to race, reli- 
gion, color, sex, or national origin. 

An individual business, under construction, 
may participate in the program by giving 
written assurance of the business's conform- 
ity with all applicable laws and requirements 
for that type of service, by a specified date 
of opening to be within one year of the date 
of application. 

(2) The maximum distance that a "GAS", 
"FOOD", or -LODGING" service can be 
located from the Interstate, or other fully 
controlled access highway shall not exceed 
three miles, with the maximum distance be- 
ing five miles for a "CAMPING" service, in 
either direction via an all-weather road. Said 
distances shall be measured from the point 



on the interchange crossroad, coincident 
with the centerline of the Interstate or other 
fully controlled access highway route me- 
dian, along the roadways to the respective 
motorist service. The point to be measured 
to for each business is a point on the road- 
way that is perpendicular to the corner of 
the nearest wall of the business to the inter- 
change. The wall to be measured to shall 
be that of the main building or office. Walls 
of sheds (concession stands, storage build- 
ings, separate restrooms, etc.) whether or 
not attached to the main building are not to 
be used for the purposes of measuring. 

If the office (main building) of a business 
is located more than .2 mile from a public 
road on a private road or drive, the distance 
to the office along the said drive road shall 
be included in the overall distance measured 
to determine whether or not the business 
qualifies for business signing. The office 
shall be presumed to be at the place where 
the services are provided. 

(3) "GAS" and associated services. Criteria for 
erection of a business sign on a panel shall 
include: 

(a) appropriate licensing as required by law; 

(b) vehicle services for fuel, motor oil, tire re- 
pair (by an employee) and water; 

(c) restroom facilities and drinking water sui- 
table for public use; 

(d) an on-premise attendant to collect monies, 
make change, and make or arrange for tire 
repairs; 

(e) year-round operation at least 16 contin- 
uous hours per day, seven days a week. 

(4) 'FOOD". Criteria for erection of a busi- 
ness sign on a panel shall include: 

(a) appropriate licensing as required by law, 
and a permit to operate by the health de- 
partment; 

(b) year-round operation at least 12 contin- 
uous hours per day to serve three meals a 
day (sandwich type entrees may be con- 
sidered a meal) (breakfast, lunch, supper), 
seven days a week; 

(c) indoor seating for at least 20 persons; 

(d) public restroom facilities. 

(5) "LODGING". Criteria for erection of a 
business sign on a panel shall include: 

(a) appropriate licensing as required by law, 
and a permit to operate by the health de- 
partment; 

(b) adequate sleeping accommodations con- 
sisting of a minimum of 10 units each, 
including bathroom and sleeping room; 

(c) off-street vehicle parking for each lodging 
room for rent; 

(d) year-round operation. 



473 



SORTH CAROLINA REGISTER 



FINAL RULES 



(6) "CAMPING". Criteria for erection of a 
business sign on a panel shall include: 

(a) appropriate licensing as required by law, 
including meeting all state and county 
health and sanitation codes and having 
adequate water and sewer systems which 
have been duly inspected and approved 
by the local health authority (the operator 
shall present evidence of such inspection 
and approval); 

(b) at least 10 campsites with accommo- 
dations for all types of travel-trailers, tents 
and camping vehicles; 

(c) adequate parking accommodations; 

(d) continuous operation, seven days a week 
during business season; 

(e) removal or masking of said business sign 
by the department during off seasons, if 
operated on a seasonal basis. 

History Note: Authority G.S. 
136-89.56; 136-137; 136-139; 143B-346; 
143B-348; 143B-350'(f); 23 C.F.R. 750, 
Subpart A; 23 U.S.C. 131(f); 
Eff. April 1, 1982; 
Amended Eff. November 1 , 1987; 
April 1, 1986; March 1, 1986; 
November 1, 1985. 

.0220 COMPOSITION OF SIGNS 

Composition, design and layout of panels and 
logo signs shall be in accord with standards ap- 
proved by the State Highway Administrator. 
Businesses which contract with the Department 
shall be furnished the standards and must con- 
form the business signs to the standards. 

No business sign shall be displayed which 
would mislead or misinform the traveling public. 
Any message, trademarks, or brand symbols 
which interfere with, imitate, or resemble any 
official warning or regulatory traffic sign, signal 
or device is prohibited. 

No business sign shall be displayed for a busi- 
ness which is not open for business and in full 
compliance with the standards required by the 
program. 

History Note; Authority G.S. 
136-89.56; 136-137; 136-139; 143B-346; 
143B-348; I43B-350(f); 23 C.F.R. 750, 
Subpart A; 23 U.S.C. 131(f); 
Eff. November 1, 1987; April 1, 1982. 

.0222 CONTRACTS WITH THE DEPARTMENT 

(a) The department shall perform all required 
installation, maintenance, removal and/or re- 
placement of all business signs upon panels. 

(b) Individual businesses requesting placement 
of business signs on panels shall apply by sub- 



mitting to the Department of Transportation a 
completed Agreement form. As a condition of 
said Agreement, the applicant must agree to 
submit the required initial fee within 30 days after 
the business is approved by the department. The 
department shall provide a statement(s) to the 
applicant at the time agreements are provided 
that itemize the number of business signs re- 
quired, their fee(s) and remittance requirements. 
Failure to submit the required fee and forms will 
result in removal by the department of the busi- 
ness's signs from the construction project plans. 

(c) Businesses must submit a layout of their 
proposed business sign for approval by the de- 
partment before the business sign is fabricated. 

(d) No business sign shall be displayed which, 
in the opinion of the department, is unsightly, 
badly faded, or in a substantial state of dilapida- 
tion. The department shall remove, replace, or 
mask any such business signs as appropriate. 
Ordinary initial installation and maintenance 
services shall be performed by the department at 
such necessary times upon payment of the an- 
nual renewal fee, and removal shall be performed 
upon failure to pay any fee or for violation of any 
provision of these Rules and the business sign 
shall be removed. The business shall furnish all 
business signs. 

(e) When a business sign is removed, it will be 
taken to the division traffic services shop of the 
division in which the business is located. The 
business will be notified of such removal and 
given 30 days in which to retrieve their business 
sign(s). After 30 days, the business sign will be- 
come the property of the department and will be 
disposed of as the department shall see fit. 

(f) Should the department determine that trail- 
blazing to a business that is signed for at the in- 
terchange is desirable, it shall be done with an 
assembly (or series of assemblies) consisting of a 
ramp size business sign and an appropriate white 
on blue arrow. The business shall furnish all 
business sign(s) required and deemed necessary 
by the department. Fees shall be same as for 
other business sign(s). If several different services 
are located on the same business site, duplicate 
type logo signs shall not be erected in a single 
logo trailblazer installation. In such trailblazer 
installations, only one logo sign and one direc- 
tional arrow sign will be used. The business may 
submit, subject to approval by the department, 
different logo signs to identify different services 
which may be located on the same business site. 

(g) Should a business qualify for business signs 
at two interchanges, the business sign(s) will be 
erected at the nearest interchange. If the business 
desires signing at the other interchange also, it 
may be so signed provided it does not prevent 
another business from being signed. 



L 



NORTH CAROLINA REGISTER 



474 



FINAL RULES 



(h) Where there are more businesses which 
meet the criteria to participate in the program 
than space is available on the panel(s), then those 
businesses closer to the interchange, measured as 
described in Rule .0219(b), shall be permitted to 
participate, except as provided for in Rule .0221 
(a), (e), and (f). 

A business, under construction, shall not be al- 
lowed to apply for participation in the program 
if it's participation would prevent an existing 
open business applicant from participating, un- 
less the open business has turned down a previ- 
ous opportunity offered by the Department to 
participate in the program as provided in Sub- 
section .0222 (i). After approval of an applica- 
tion to participate a business, under construction, 
shall be allowed priority participation over an- 
other business, which qualifies and becomes 
open for business prior to the time specified for 
opening in the application by the business under 
construction. 

(i) Should the number of businesses of a par- 
ticular service at an interchange increase to more 
than the maximum number of business signs al- 
lowed on a panel, and a closer business qualifies 
and requests installation of its business signs, the 
business sign(s) of the farthest business shall be 
removed at the renewal date, provided that any 
business which has previously paid the full cost 
of erecting a panel shall not be removed under 
this Rule. A business which has turned down a 
previous opportunity offered by the department 
to participate in the program may not qualify as 
a closer business under this Rule, except as pro- 
vided in Rule .0221 (a), (e), and (f). 

(j) When it comes to the attention of the de- 
partment that a participating business is not in 
compliance with the minimum state criteria, the 
division engineer's office shall promptly verify the 
information and if a breach of agreement is as- 
certained, inform the business that it will be given 
a maximum of 30 days to correct any deficiencies 
or its business signs will be removed. If the bu- 
siness is removed and later applies for rein- 
statement, this request shall be handled in the 
same manner as a request from a new applicant. 

At the time specified for opening, if the business 
under construction is found to not be in compli- 
ance, or not open for business, the Division En- 
gineer shall promptly verify the information. If 
a breach of agreement is ascertained, the Division 
Engineer shall inform the business that it will be 
given a maximum of 30 days to correct any defi- 
ciencies or its business signs will not be erected. 
If the business later applies for reinstatement, this 
request will be handled in the same manner as a 
request from a new applicant. 

(k) The department reserves the right to cover 
or remove anv or all business sims in the con- 



duct of maintenance or construction operations, 
or for research studies, or whenever deemed by 
the department to be in the bestinterest of the 
department or the traveling public, without ad- 
vance notice thereof. The department reserves the 
right to terminate this program or any portion 
thereof by furnishing the business written notice 
of such intent not less than 30 calendardays prior 
thereto. 

(1) The transfer of ownership of a business for 
which an agreement has been lawfully executed 
with the original owner shall not in any way af- 
fect the validity of the agreement for the business 
sign(s) of the business, provided that the appro- 
priate division engineer is given notice in writing 
of the transfer of ownership within 30 days of the 
actual transfer. 

History Note: Authority G.S. 
I 36-89.56; 136-137; 136-139; 143B-346; 
I43B-348; 143B-350(f); 23 C.F.R. 750, 
Subpart A; 23 U.S.C. 131(f); 
Eff. April 1, 1982; 
Amended Eff. November 1 , 1987; 
April 1, 1986; November 1, 1985; 
February I, 1984. 

TITLE 20 DEPARTMENT OF STATE 
TREASURER 

CHAPTER 9 - EDUCATIONAL FACILITIES 
FINANCE AGENCY 

SECTION .0100 - GENERAL PROVISIONS 

.0101 ORGANIZATION AND FUNCTIONS 

(a) The Educational Facilities Finance Agency 
operates within the Department of State Treas- 
urer and is the State's agency charged with the 
duty of advising and assisting institutions of 
higher education in financing the construction 
and renovation of higher education faculties. 

(b) The following is general information about 
the Educational Facilities Finance Agency: 

(1) The Administrative Officer is the Secre- 
tary-treasurer of the Agency; 

(2) The mailing address is 325 North Salisbury- 
Street, Raleigh, North Carolina 27611; 
and 

(-3) The office is located in the Albemarle 
Building, 325 North Salisbury Street, Ra- 
leigh, North Carolina. 

(c) The staff of the Educational Facilities Fi- 
nance Agency is provided by the State and Local 
Government Finance Division. 

Histon' Note: Filed as a Temporary Rule 
to be Eff. September 30, 1987, for' a 
Period of 153 Days to Expire on 



4~5 



NORTH CAROLINA REGISTER 



FINAL RULES 



March 1, 1988; 

Statutory Authority G.S. 115E-4(e). 

.0102 DEFINITIONS 

The words and phrases defined in this Rule will 
have the meanings indicated when used in this 
Chapter, unless the context clearly requires an- 
other meaning: 

(1) "Agency" is the Educational Facilities Fi- 
nance Agency and/or the Board of Directors 
thereof. 

(2) "Secretary-treasurer" is the Secretary-trea- 
surer of the Educational Facilities Finance 
Agency. 

(3) "Institution" means a nonprofit private ed- 
ucational institution within the State of 
North Carolina authorized by law to provide 
a program of education beyond the high 
school level. 

(4) "Participating institution" means an insti- 
tution which, pursuant to the provisions of 
this Chapter, undertakes the financing, refi- 
nancing, acquiring, construction, equipping, 
providing, owning, repairing, maintaining, 
extending, improving, rehabilitating, reno- 
vating, or furnishing of a project or under- 
takes the refunding or refinancing of 
obligations or of a deed of trust or a mort- 
gage or of advances as provided in the 
Higher Educational Facilities Finance Act. 

History Note: Filed as a Temporary Rule 
to be Eff. September 30, 1987, for a 
Period of 153 Days to Expire on 
March I, 1988; 
Statutory Authority G.S. 1 15E-3. 

SECTION .0200 - RULE-MAKING 

.0201 RULEMAKING PROCEDURES 

(a) 20 NCAC IF .0100 shall govern the issu- 
ance of rules by the Agency. 

(b) All correspondence shall be addressed to 
the Secretary-treasurer at the mailing address of 
the Commission. 

History Note: Filed as a Temporary Rule 
to be Eff September 30, 1987, for a 
Period of 153 Days to Expire on 
March 1, 1988; 
Statutory Authority G.S. 1/5E-5. 

0202 DECLARATORY RULES 

(a) 20 NCAC IF .0200 shall govern the issu- 
ance of declaratory rules by the Agency. 

(b) All correspondence shall be addressed to 
the Secretary-treasurer at the mailing address of 
the Agency. 



History Note: Filed as a Temporary Rule 
to be Eff. September 30, 1987, for a 
Period of 153 Days to Expire on 
March 1, 1988; 
Statutory Authority G.S. I I5E-5. 

SECTION .0300 - CONTESTED CASES 

.0301 CONTESTED CASE PROCEDURES 

(a) 20 NCAC IF .0300 shall govern the hear- 
ings and decisions in contested cases. 

(b) All correspondence shall be directed to the 
Secretary-treasurer at the mailing address of the 
Agency. 

History Note: Filed as a Temporary Rule 
to be Eff. September 30, 1987, for a 
Period of 153 Days to Expire on 
March I, 1988; 
Statutory Authority G.S. 115E-5. 

SECTION .0400 - APPROVAL OF 
APPUICATION 

.0401 REQUESTS FOR ACTION 

(a) All requests for action shall be addressed to 
the Secretary-treasurer at the mailing address of 
the Agency. 

(b) Each request for action shall include the 
following information: 

(1) cover letter which includes: 

(A) name and address of the institution of 
higher education, 

(B) brief description of circumstances and 
action requested, 

(C) statutory basis for request and for ac- 
tion; 

(2) detailed description of circumstances and 
reasons for which action is requested; 

(3) list of all persons (real and corporate) who 
may be beneficially or adversely affected 
by any action of the Agency; and 

(4) such other applicable material and infor- 
mation as requested by the Secretary- 
treasurer. 

(c) After receipt of a request, the Secretary- 
treasurer shall review the case. The Secretary- 
treasurer may require the petitioner to attend an 
informal conference with the staff of the Agency. 
The Secretary-treasurer may require the filing of 
such additional information as he may consider 
valuable to the consideration of the issues. The 
Secretary-treasurer may invite the staff of the 
Local Government Commission to the prelimi- 
nary informal conference to discuss financing of 
the project. 

(d) At a preliminary informal conference the 
following matters may be discussed: 

(1) the nature and feasibility of the proposed 
project; 



NORTH CAROLINA REGISTER 



476 



FINAL RULES 



(2) the need for the project; 

(3) the feasibility of financing the project; 

(4) the institution's debt management policies 
and practices; 

(5) the financial strengths and capabilities of 
the institution; 

(6) any other matters relating to the institu- 
tion, to the proposed project, or to the 
proposed financing or lease; 

(7) the procedures for application of approval 
to be used in that case; and 

(8) future requirements to finance the project 
including requirements inherent in the 
method of financing proposed, such as the 
costs and need for experts, and the special 
requirements of those experts. 

(e) The governing body of the institution shall 
adopt and file with the Agency a resolution au- 
thorizing filing of the application to the Agency. 

(f) The institution shall submit to the Agency 
as a part of the application for approval all doc- 
uments requested by the Secretary -treasurer. 

(g) At any time after the acceptance of the ap- 
plication, the application may be considered by 
the Agency together with all applicable data 
available to the Agency. The Agency shall use 
the factors set forth in the Higher Educational 
Facilities Finance Act and any other factors 
which in its opinion are applicable to the cir- 
cumstances under consideration. 

(h) The amount approved shall be considered 
the maximum amount of debt to be incurred. 

(i) The Secretary-treasurer shall promptly pro- 
vide a copy of the final decision to the applicant. 

(j) The Secretary-treasurer shall promptly pro- 
vide a copy of any decision of the I ocal Gov- 
ernment Commission relevant to the project to 
the applicant. 

(k) The Agency may hold a public hearing on 
the application. 

History Sole: Filed as a Temporary Rule 
to be Fff. September 30. 1987, for a 
Period of 153 Days to Expire on 
March I, 19SS; 
Statutory Authority G.S. 1 15E-7. 

.0402 HEARING ON CONFORMANCE TO 
PRIOR APPROVALS 

(a) .Any party at interest may request from the 
Agency a hearing on whether a participating in- 
stitution, for which the Agency has provided an 
approval under this Section, has conformed to 
the terms of the approval so provided under this 
Section. 

(b) In the discretion of the Agency, the Agency 
may refuse to consider any request which does 
not specity actual instances of non-compliance 



by the participating institution and provide ade- 
quate documentation thereon. 

(c) After receiving a valid request for a hearing, 
the staff shall provide a copy thereof to the par- 
ticipating institution and request comments and 
adequate documentation supporting the com- 
ments within 20 days of receipt by the partic- 
ipating institution of the request. 

(d) After receiving the comments of the partic- 
ipating institution, the staff shall prepare a sum- 
mary of the request, the rebuttal, and any other 
comments received on the matter. The summary 
and all other pertinent documentation shall be 
furnished to the Agency at its next regular meet- 
ing. All interested parties which have requested 
notification shall be provided the opportunity to 
attend the meeting. 

(e) The Agency shall discuss the matter in open 
meeting and may make one of the following de- 
cisions, based on its assessment of the validity of 
any claims made: 

(1) The Agency may require the participating 
institution to correct the non-confor- 
mance within a given period not longer 
than 120 days; 

(2) The Agency may request a contested case 
hearing on the matter, so that it may have 
a proper evidential record before it, prior 
to making its final decision; and 

(3) The Agency may deny the request for 
hearing on the grounds of lack of sub- 
stance. 

(f) After the end of any corrective period or 
after the Agency has received the report of a 
contested case, the Agency shall again bring the 
matter before it at a regular meeting. Notice of 
the meeting shall be provided to all persons re- 
presented at the first meeting and all other per- 
sons requesting notices of the meeting in writing. 

History Sole: Filed as a Temporary Rule 
to be Eff. September 30, 1987, for a 
Period of 153 Days to Expire on 
March 1, 1988; 
Statutory Authority G.S. 1 15E-7. 

.0403 APPLICATION TO AMEND PRIOR 
APPROVALS 

(a) Whenever there is a substantial change in 
the economic environment or situation in which 
the participating institution operates, the govern- 
ing board of the participating institution may 
make an application to amend a prior approval 
by the Agency. 

(b| An application to amend prior approvals 
shall be submitted in the same manner as re- 
quired for initial approval plus such other addi- 
tional items as the Agency may request. 



477 



NORTH CAROLINA REGISTER 



FINAL RULES 



History Note: Filed as a Temporary Rule 
to be Eff. September 30, 1987, for a 
Period of 153 Days to Expire on 
March 1, 1 988; 
Statutory Authority G.S. 1 15E-7. 

SECTION .0500 - REVIEW CRITERIA 

.0501 GENERAL 

In order for the Secretary-treasurer to recom- 
mend approval of a project, he must make cer- 
tain findings. It is the purpose of this Section to 
specify the standards and criteria the Secretary- 
treasurer will use in making his findings. 

History Note: Filed as a Temporary Rule 
to be Eff. September 30, 1987, for a 
Period of 153 Days to Expire on 
March 1, 1988; 
Statutory Authority G.S. 1 15E-6. 

.0502 JLRISDICTIONAL FINDINGS 

(a) Before making technical findings, the Sec- 
retary-treasurer shall make a finding that the 
project is eligible as defined by law. 

(b) The Secretary-treasurer shall make findings 
on the criteria established for approval of revenue 
bonds. 

(c) Unless the applicant has met his various 
burdens of proof, the Secretary-treasurer shall 
not make his required findings. 

(d) All findings shall be in writing and where 
adverse findings are made, they shall specifically 
indicate in detail which elements of proof were 
weak, the required conclusions which could not 
be made, and any suggestions for amending the 
application. 

Histoiy Note: Filed as a Temporary Rule 
to be Eff. September 30, 1987, for a 
Period of 153 Days to Expire on 
March 1, 1988; 
Statutory Authority G.S. 1 15E-6. 



SECTION .0600 - FEES 

.0601 COLLECTING FEES 

(a) Fees shall be collected for all actions of the 
Agency in connection with the approval or denial 
of requests. 

(b) Application fees shall be payable prior to a 
final request for approval or participation by the 
Agency. 

(c) Annual fees shall be payable on the anni- 
versary date of each financing so long as any of 
such obligations are outstanding and unpaid. 

History Note: Filed as a Temporary Rule 
to be Eff. September 30, 1987, for a 
Period of 153 Days to Expire on 
March 1, 1988; 
Statutory Authority G.S. 115E-5(17). 

.0602 FEES AND EXPENSES 

(a) A non-refundable application fee shall be 
required of .05 percent (five hundreths of one 
percent) of the par amount of the issue with a 
minimum fee of two thousand dollars ($2,000), 
plus any and all fees charged by the Local Gov- 
ernment Commission. 

(b) An annual fee of five hundred dollars ($500) 
per year shall be required. 

(c) In addition to the fee set forth in this Rule, 
all travel and subsistence incurred, and all mate- 
rial amounts of other expenses, e.g. telephone 
and postage when paid by the State, shall be 
billed to the institution. 

(d) The Agency will not incur extraordinary 
expenses without prior agreement of the appli- 
cant to reimburse the Agency for all related costs. 

History Note: Filed as a Temporary Rule 
to be Eff. September 30, 1987, for 'a 
Period of 1 53 Days to Expire on 
March I, 1988; 
Statutory Authority G.S. 115E-5(17). 



NORTH CAROLINA REGISTER 



47 S 



LIST OF RULES AFFECTED 



NORTH CAROLINA ADMINISTRATIVE CODE 
LIST OF RULES AFFECTED 
EFFECTIVE: October 1, 1987 



AGENCY 
DEPARTMENT OF AGRICULTURE 



ACTION TAKEN 



2 NCAC 9B 


.0016 




Amended 


9C 


.0302 




Amended 


9D 


.0001 




Amended 


9E 


.0003 




Amended 




.0011 




Amended 




.0013 




Amended 


41 


.1111 




Temp. Adopted 
Expires 3-29-88 


10G 


.0301- 


0302 


Amended 


20A 


.0001- 


0002 


Repealed 


20 B 


.0101 




Amended 




.0208 




Amended 




.0217 




Repealed 




.0301 




Amended 


34 


.0503 




Temp. Repealed 
Expires 9-22-87 




.0505 




Temp. Repealed 
Expires 9-22-87 


38 


.0302 




Repealed 


43A 


.0001 




Repealed 


48A 


.0201 




Amended 


48B 


.0015- 


0016 


Amended 


52B 


.0211 




Repealed 


52H 


.0001 




Amended 


DEPARTMENT OF COMMERCE 






4 NCAC 16D 


.0404 


Amended 




.0901 




Adopted 




.1001- 


1004 


Adopted 


16F 


.0001 




Amended 


GOVERNOR'S OFFICE 








9 NCAC 2 






Executive Order Number 52 
Eff. July 30, 1987 
Executive Order Number 53 
Eff. July 30, 1987 
Executive Order Number 54 
Eff. August 25, 1987 
Executive Order Number 55 
Eff. September 30, 1987 
Executive Order Number 56 
Eff. September 30, 1987 


DEPARTMENT OF HUMAN 


RESOFRCES 













4'9 



NORTH CAROLINA REGISTER 



LIST OF RULES AFFECTED 



10 NCAC 10G .0108 

.0504 

26G .0403 
.0707 

26H .0501 

.0601-.0605 

35E .0105-.0106 
.0315 



Temp. Adopted 

Expires 3-29-88 

Temp. Amended 

Expires 3-29-88 

Repealed 

Adopted 

Repealed 

Adopted 

Amended 

Amended 



DEPARTMENT OF LABOR 

13 NCAC 7C .0101 Amended 

DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY 



14A 



NCAC 



9B 
9H 



.0101 
.0105 

.0804-.0805 
.0003 



Amended 
Adopted 
Amended 
Adopted 



DEPARTMENT OF NATURAL RESOURCES AND COMMUNITY DEVELOPMENT 



15 



NCAC 1H 



2B 



2D 



]\\ 



711 



13Q 



.0101- 

.0201 

.0303 

.0305 

.0311 

.0525 

.0524 

.0530- 

.0101 

.0105 

.0107- 

.0112- 

.0115 

.0117 

.0122- 

.0127- 

.0204- 

.0208- 

.0210 

.0211- 

.0214 

.0215 

.0218 

.0219- 

.0901- 

.0911 

.0912- 

.0916- 

.0308 

.0406 

.0101- 



0102 



0532 



0109 
0113 



0124 
0141 
0206 
0209 

.0213 



0221 
0910 

0915 

0917 



0104 



.0201-. 0202 



.0301 -.0304 



Amended 

Amended 

Amended 

Amended 

Amended 

Amended 

Amended 

Amended 

Amended 

Amended 

Amended 

Amended 

Amended 

Amended 

Amended 

Adopted 

Amended 

Amended 

Repealed 

Amended 

Repealed 

Amended 

Amended 

Adopted 

Amended 

Repealed 

Amended 

Adopted 

Amended 

Amended 

Temp. Adopted 

Expires 3-29-88 

Temp. Adopted 

Expires 3-29-88 

Temp. Adopted 



NORTH CAROLINA REGISTER 



480 



LIST OF RULES AFFECTED 



.0401 -.0403 
.0501-.0503 
.0601-.0605 
.0701-. 0704 
16C .0105 
.0108 

DEPARTMENT OF TRANSPORTATION 

19A NCAC 2D .0608 

DEPARTMENT OF STATE TREASURER 

20 NCAC 1G .0402 

9 .0101-. 0102 

.0201-.0202 
.0301 

.0401 -.0403 
.0501-. 0502 
.0601-. 0602 

BOARD OF CERTIFIED PI B1.IC ACCOUNTANT EXAMINERS 

21 NCAC 8F .0504 

8G .0113 

DEPARTMENT OF JUSTICE 



22 



NCAC 2A .0001 -.0005 
2B .0101-. 0102 
.0201-.0205 
.0301-.0302 
.0401 -.0404 
.0501 -.0504 
.0601-.0603 
.0701-.0704 
2C .0101-.0104 
.0201-.0202 
.0301-.0308 
.0401 -.0403 
.0501-.0504 



HOISINC, FINANCE AGENCY 



Expires 3-29-88 
Temp. Adopted 
Expires 3-29-88 
Temp. Adopted 
Expires 3-29-88 
Temp. Adopted 
Expires 3-29-88 
Temp. Adopted 
Expires 3-29-88 
Temp. Amended 
Expires 1 1-1-87 
Temp. Amended 
Expires 1 1-1-87 



Amended 



Amended 
Temp. Adopted 
Expires 3-1-88 
Temp. Adopted 
Expires 3-1-88 
Temp. Adopted 
Expires 3-1-88 
Temp. Adopted 
Expires 3-1-88 
Temp. Adopted 
Expires 3-1-88 
Temp. Adopted 
Expires 3-1-88 



24 



NCAC ID .0601-. 0604 



Adopted 
Adopted 



Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 



Temp. Adopted 
Expires 1-20-88 



48 1 



NORTH CAROLINA REGISTER 



LIST OF RULES AFFECTED 



IK .0501 -.0504 Temp. Adopted 

Expires 1-7-88 

OFFICE OF ADMINISTRATIVE HEARINGS 

26 NCAC 3 .0025 Temp. Repealed 

Expires 12-24-87 
.0026 Temp. Adopted 

Expires 12-24-87 



NORTH CAROLINA REGISTER 482 



NC AC INDEX 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT 



1 

2 
3 
4 
5 
6 
7 

9 

10 
li 
12 
13 
14A 
15 
16 
17 
IX 

19A 
20 
*21 
22 
23 
24 
25 
26 



Administration, Department of 

Agriculture, Department of 

Auditor, Department of State 

Commerce, Department of 

Corrections, Department of 

Council of State 

Cultural Resources, Department 

Elections, State Board of 

Governor, Office of the 

Human Resources, Department of 

Insurance, Department of 

Justice, Department of 

Labor, Department of 

Crime Control and Public Safety, Department of 

Natural Resources and Community Development 

Education, Department of 

Revenue, Department of 

Secretary of State, Department of 

Transportation, Department of 

Treasurer, Department of State 

Occupational Licensing Boards 

Administrative Procedures 

Community Colleges, Department of 

Independent Agencies 

State Personnel, Office of 

Administrative Hearings, Office of 



NOTE: Title 21 contains the chapters of the various occupational licensing boards. 
CHAPTER LICENSING BOARDS 

2 Architecture, Board of 

4 Auctioneers, Commission for 

6 Barber Examiners, Board of 

8 Certified Public Accountant Examiners 

10 Chiropractic Examiners, Board of 

12 Contractors, Licensing Board for 

14 Cosmetic Art Examiners, Board of 

16 Dental Examiners, Board of 

18 Electrical Contractors, Board of Examiners 

20 Foresters, Board of Registration for 

21 Geologists, Board of 

22 Hearing Aid Dealers and Fitters Board 
26 Landscape Architects, Licensing Board of 

28 Landscape Contractors, Registration Board of 

31 Martial & Family Therapy Certification Board 

32 Medical Examiners, Board of 

33 Midwifery Joint Committee 

34 Mortuary Science, Board of 

36 Nursing, Board of 

37 Nursing Home Administrators, Board of 

38 Occupational Therapist, Board of 
40 Opticians, Board of 

42 Optometry, Board of Examiners in 



483 



NORTH CAROLINA REGISTER 



NC AC INDEX 



44 Osteopathic Examination and Registration 

46 Pharmacy, Board of 

48 Physical Therapy, Examining Committee of 

50 Plumbing and Heating Contractors, Board of 

52 Podiatry Examiners, Board of 

53 Practicing Counselors, Board of 

54 Practicing Psychologists, Board of 

56 Professional Engineers and Land Surveyors, Board of 

58 Real Estate Commission 

60 Refrigeration Examiners, Board of 

62 Sanitarian Examiners, Board of 

63 Social Work, Board of 

64 Speech and Language Pathologists and 

Audiologists, Board of Examiners of 

66 Veterinary Medical Board 



NOR TH CA ROLINA REGIS TER 4S4 



CUMULATIVE INDEX 



CUMULA TIVE INDEX 

(April 1987 - March 1988) 



1987 - 1 



Pages 

1 - 137 

138 - 169 

170 - 198 

199 - 285 

286 - 364 

365 - 417 

418 - 487 



Issue 



1 - 


April 


2 - 


May 


3 - 


June 


4 - 


July 


5 - 


August 


6 - 


September 


7 - 


October 



AO - Administrative Order 

AG - Attorney General's Opinions 

C - Correction 

E - Errata 

EO - Executive Order 

FDE - Final Decision Letters 

FR - Final Rule 

GS - General Statute 

JO - Judicial Orders or Decision 

LRA - List of Rules Affected 

M - Miscellaneous 

NP - Notice of Petitions 

PR - Proposed Rule 

SO - Statements of Organization 

TR - Temporary Rule 



ADMINISTRATION 

Auxiliary Services, 203 PR 
Departmental Rules, 429 PR 
Property and Construction, 388 PR 
State Construction, 388 PR 
State Employees Combined Campaign, 

ADMINISTRATIVE HEARINGS 

Hearings Division, 408 PR 



13 PR, 334 PR 



AGRICULTURE 

Food and Drue Protection Division, 204 PR, 429 PR 

Markets, 206 PR 

N. C. State Fair, 205 PR 

Pesticide Board, 13 PR 

Standards Division, 206 PR 

Structural Pest Control, 205 PR, 393 PR 

Veterinary, 209 PR 

COMMERCE 

Cemetery Commission, 429 PR 



485 



NORTH CAROLINA REGISTER 



CUMULA TIVE INDEX 



Credit Union Division, 334 PR 
Departmental Rules, 14 PR, 143 PR 
Savings & Loan Division, 147 PR 
Seafood Industrial Park Authority, 430 PR 

COMMUNITY COLLEGES 

Community Colleges, 270 PR 

CORRECTION 

Division of Prisons, 105 FR, 190 FR, 275 FR 
Parole Commission, 106 FR 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol, 159 PR 
Victim and Justice Services, 342 PR 

executes e orders 

Executive Orders 34 - 42, 1 EO 

43 - 46, 138 EO 

47 - 49, 171 EO 

50, 199 EO 

51 - 53,288 EO 

54, 384 EO 

55 - 56,418 EO 

FINAL DECISION LETTERS 

Voting Rights Act, 10 FDL, 141 FDL, 200 FDL, 291 FDL, 385 FDL 

GENERAL STATUTES 

Chapter 7A, 382 GS 
Chapter 143B, 286 GS 
Chapter 150B, 366 GS 

HUMAN RESOURCES 

AFDC, 156 PR 

Commission of Anatomy, 441 PR 
Facility Services, 174 PR, 211 PR, 393 PR 
Family Services, 152 PR 
Health Services, 237 PR, 432 PR 
Individual and Family Support, 153 PR 

Medical Assistance, 149 PR, 174 PR, 248 PR, 339 PR, 396 PR, 443 PR 
Mental Health, Mental Retardation 
and Substance Abuse, 15 PR, 247 PR, 337 PR, 442 PR 
Notice, 170 C 
Social Services Commission, 397 PR 

INDEPENDENT AGENCIES 

Housing Finance, 355 PR 

INSURANCE 

Life Accident & Health Division, 17 PR 

JUDICIAL ORDERS 

Martin v. Melott, 420 JO 

JUSTICE 

Education and Training Standards, 19 PR 
N.C. Alarm Systems, 341 PR 
Private Protective Services, 249 PR 



; 



NOR TH CAROLINA REGIS TER 4S6 



CUMULA TIVE INDEX 



LICENSING BOARDS 

CPA, 269 PR, 351 PR 

Chiropractic Examiners, 178 PR 

Dental Examiners, 461 PR 

Medical Examiners, 95 PR, 403 PR 

Mortuary- Science, 404 PR 

Nursing Home Administrators, 182 PR 

Opticians, 404 PR 

Real Estate, 352 PR 

LIST OF RULES AFFECTED 

Volume 12, No. 1 
(April 1, 1987), 131 LRA 
Volume 12, No. 2 
(May 1, 1987), 163 LRA 
Volume 12, No. 3 
(June 1, 1987), 193 LRA 
Volume 12, No. 4 
(July 1, 1987), 277 LRA 
Volume 12, No. 5 
(August 1, 1987), 358 LRA 
Volume 12, No. 6 
(September 1, 1987), 411 LRA 
October 1, 1987,479 LRA 

NATURAL RESOURCES AND COMMUNITY DEVELOPMENT 

Coastal Management, 94 PR, 160 PR, 259 PR, 347 PR, 365 C, 401 PR, 445 PR 

Economic Opportunity, 161 PR 

Environmental Management, 29 PR, 249 PR, 346 PR 

Marine Fisheries, 84 PR, 255 PR 

Wildlife Resources and Water Safety, 175 PR, 268 PR, 446 PR 

PUBLIC EDUCATION 

Elementary and Secondary, 348 PR 

REVENUE 

Corporate Income Franchise Tax, 470 FR 
Individual Income Tax, 107 FR 
Motor Fuels Tax, 108 FR 

STATE PERSONNEL 

Employee Benefits, 183 PR, 408 PR 
Office of State Personnel, 96 PR, 465 PR 

STATE TREASURER 

Departmental Rules, 161 PR 

Educational Facilities Finance Agency, 349 PR, 475 FR 

Investment Program, 177 PR 

STATEMENTS OF ORGANIZATION 

Statements of Organization, 295 SO 

TRANSPORTATION 

Division of Highways, 410 FR, 471 FR 
Motor Vehicles, 109 FR 



487 NORTH CAROLINA REGISTER 



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A1VIS 
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